text:
    Padgett vs. Lawrence and others.
    The word junior forms no part of the name of the person to whose name it is usually affixed, but is merely descriptive of the person intended; and is usually adopted to designate the son where a father and son both have the same Christian name as well as the family name.
    Where two persons have the same name, and a deed is given to one of them omitting the word junior, it is only presumptive evidence that the eldest person of the name, and who will answer the description in the deed in other respects, was intended as the grantee; which presumption may be rebutted by showing that the grantor intended to convey to the youngest one, by the name and description in the deed.
    As a general rule a purchaser of the legal title to property, who receives the conveyance thereof merely upon the consideration of a prior indebtedness of the grantor, is not entitled to protection as a bona fide purchaser of such property without notice of a prior equity of a third person therein. But the relinquishment of a valid security which the purchaser before held for his debt, and which cannot be revived so as to place him in the same situation substantially as to security as he was in prior to his purchase, may entitle him to such protection.
    Declarations made by a person in possession of real estate, as to his interest or title to the same, may be given in evidence against those who have subsequently derived their title from or under him, in the same manner that such declaration could have been used against him if he, had not parted with his possession or interest in the property.
    But declarations of a former owner of property which were made after he had parted with his interest therein, or which declarations are overreached by the purchase of the party who claims through or under him, cannot be received as evidence to effect the legal or equitable title of such party to the premises.
    Thus the declarations or admissions of an owner of land, made subsequent to the docketing of a judgment against him, are not admissible as evidence against a purchaser under such judgment, although they were made previous to the sale by the sheriff.
    Declarations or admissions of third persons are not legal evidence to establish or to destroy a title to land, or to prove or disprove the existence of a trust in relation to such lands, except as against those who have derived title to the lands from the persons making such declarations or admissions, and by a title subsequent to the making thereof.
    A trust resulting from the mere payment of the purchase money of land, previous to the revised statutes, was a resulting trust in favor of the person paying such money ; and descended to his heirs upon his death. But the payment of the money by one person will not raise a resulting trust by implication in favor of another.
    1843. April 4.
    This was an appeal from a decree of the vice chancellor of the sixth circuit. The object of the complainant’s bill was to obtain a decree restraining the defendants, Lawrence & Keese, from proceeding in a suit at law to recover a lot of land in Chenango county called the Carson lot, and to quiet the complainant’s title to the premises. The land in question originally belonged to P. Livingston, who, by his agent, J. Morris, in December, 1809, contracted to sell it to J. Walker for $400 ; forty dollars of the purchase money to be paid down, and the residue to he paid in six years with the interest thereon annually. And by the terms of the written contract, Walker was to have a conveyance of the premises, upon the payment of the balance of $360 and interest. A year or two after Walker took this contract he made a parol agreement with John Padgett, the father of the complaint, to let him have the land, upon his repaying the $40 which Walker paid when the contract was executed. Padgett was to take out a new contract in his own name, so as to discharge Walker from liability, and the contract of December, 1809, was given over to him to enable him to do so. Under this parol agreement, Padgett went into possession of the premises and made some improvements, and built a grist mill thereon in connection with Carson. The grist mill, however, was carried off by a flood soon after it was built, and there was then some difficulty between Padgett and Carson, in relation to the rights of the latter, who continued to occupy the house upon the premises for a short time thereafter. In January, 1816, Padgett delivered to the agent of Livingston a draft on England drawn by his mother in his favor for ¿6112 sterling, to be applied on the contract. The proceeds of this draft were sufficient to pay the $360 and the simple interest thereon ; but leaving about thirty dollars due, upon a computation of interest upon the interest as it became due and payable, annually, by the terms of the contract. On the 10th of May, 1824, the agent of Livingston took the note of the complainant’s father for the balance then due, and endorsed it upon the contract, with a memorandum under such endorsement that when the note should be paid a deed would be delivered to John Padgett, or his assigns, for the land mentioned in the contract. The note was never paid, but a suit was afterwards brought thereon against the complainant’s father, in favor of the executors of Livingston, and a judgment recovered for the amount, in June, 1826.
    In May, 1816, the executors of Livingston, in pursuance of a power contained in his will, made out and signed and acknowledged a deed for the premises, to John Padgett junior, of Oxford in the county of Chenango ; and sent the same to Morris, the agent, to be delivered to the grantee therein upon being paid the balance due on the contract. On the 16th June, 1826, the father of the complainant confessed a judgment, for $104,99 in favor of the defendant George Farnham ; which judgment was docketed in the clerk’s office of Chenango county the next day thereafter. And in December, 1826, an arrangement was made between Padgett and Farnham, by which the latter took an assignment of the Livingston judgment and a delivery of the deed for the premises, upon paying to the attorney of Livingston the amount of that judgment, and the deed was then put upon record. At the time that deed was dated and acknowledged, in May, 1816, there were three John Padgetts of Oxford in the county of Chenango; to wit, the complainant, a minor then about eight years old, his father, and his grand father. The grand father was then blind and had been so for some years, and died in May, 1817. And one question presented by the bill was whether the legal title to the premises was conveyed to the complainant, by that deed, or to his father, by the description of John Padgett, junior.
    The judgment confessed by the complainant’s father in June, 1826, in favor of Farnham, not being paid, the latter took out an execution from the county clerk’s office ; upon which execution the sheriff sold the land, and the same was bid in by Farnham for the sum or price of $124,94. And on the 26th of May, 1829, the time for redemption having expired, the sheriff conveyed the premises to Farnham under that judgment and execution ; who thereupon took possession by his tenant. In October of the same year, Farnham conveyed the premises to the defendants Lawrence and Keese, with warranty, for the consideration of $800 ; which consideration was part of an antecedent debt then due and owing from him to them. And they continued in possession of the premises, by their tenant, until 1837, about two years after the death of the complainant’s father; when their tenant, upon being threatened with litigationi left the premises, and the complainant took possession. Lawrence and Keese having brought an ejectment suit to recover: the possession, this bill was filed, in March, 1839.
    ' In addition to these facts, as to which there was no dispute, the bill stated that the complainant’s father, after he found that he could not pay for the premises according to his agreement with Walker, made an arrangement with his mother, Hannah Padgett, by which he agreed that if she would pay to Walker the $40, and would advance the monies then due on the contract to Livingston, he would get a deed for the lot in the name of his son the complainant; that she assumed to make such payments; that it was agreed the deed should be taken in the name of the complainant, for his use and benefit; that she paid the $40, to Walker, and drew the bill of exchange on England, to be applied according to such agreement, by the complainant’s father as her agent; and that she afterwards advanced to him the balance due on the contract, which by an express agreement was to be applied by him as her agent in payment of the balance due on the contract, and a deed was to be taken in the complainant’s name and for his sole use and benefit. The complainant also alleged in his bill that at the date of the deed he was called John Padgett, junior, although his grand father was then living; because the grand father was then blind and was not doing business. He also alleged that the judgment of Farnham was paid before the sale of the premises under the execution thereon. But all these allegations were denied by the answers.
    The cause was heard on pleadings and proofs. The vice chancellor decided and decreed that the defendants obtained no greater right or interest in the premises, under the judgment and execution against the complainant’s father, than the father himself had at the time of docketing the judgment against him; that he received the money to pay for the premises as the agent of his mother, and to pay them over for the use and benefit of the complainant, and to take a deed of the premises for him and in his name ; that the deed taken in the name of John Padgett, junior, was taken in the name of the complainant, he being the junior of himself and his father, and that his father and those claiming under him were estopped from claiming that the conveyance of the premises was to the father and not to the complainant, or that the latter was not the grantee described in the deed ; that if the deed was taken in the name of the complainant’s father as the grantee therein, the latter had only a nominal legal title to the lot, which passed under the sheriff’s deed, and that the complainant was the cestui que trust and owner of the premises in equity, in fee simple. He therefore decreed a release from the defendants Lawrence and Keese to the complainant of all their right and title to the premises which they had derived under the conveyance from the defendant Farnham ■ and awarded a perpetual injunction, restraining the defendants from proceeding in their suit at law or in any other suit 'for the recovery of the premises, under the title derived under the sheriff’s deed or the deed from Farnham. From this decision and decree the defendants appealed to the chancellor.

      James Clapp, for the appellants.
    The deed was made to and in the name of the complainant’s father, and was intended for him. The judgment of Farnham against the father of the complainant, was at the time of the sheriff’s deed unsatisfied. If the evidence is admissible, it proves nothing but a parol agreement that the complainant’s father should púrchase the land and hold it in trust for the complainant. Such a parol agreement is void by the statute of 'frauds. (2 R. S. 134, § 6.) But' the evidence to establish this parol agreement is inadmissible. The declarations of the complainant’s father cannot be received as evidence. He, if living, would have been a competent witness for the complainant. His declarations therefore cannot be given in evidence. (11 John. 185. 15 Idem, 493. 7 Wend. 752. 7 John. 95. 3 Wend. 180. 4 Cowen, 527.) His declarations also cannot be received, because they violate the rule that a title to land shall not be divested by parol. (4 Cowen, 427. 5 Idem, 485. 6 Wend. 233. 4 Idem, 442. 5 Paige, 111.) The declarations of Hannah Padgett are inadmissible for the same reasons. The evidence does not establish a resulting trust in the complainant. Such a trust arises only by implication of law upon the actual payment, in money, of the whole consideration, or of an aliquot part thereof by the cestui que trust. The trust results only in favor of the party who advances the money. (2 Paige, 238. 2 John. Ch. Rep. 409. 2 Atk. 711. 4 East, 57. 7 Cranch, 176. 5 John. Ch. Rep. 19. 2 Idem, 409. 15 Wend. 647. 2 Mad. 114. 1 Cox. 15.) The complainant paid no part of the consideration money. A trust in favor of a third person can only be created by an express declaration ; and this must be in writing. (2 Story’s Com. 444.)

      H. Vanderlyn, for the respondent.
    The defendants have no' other or greater rights than the complainant’s father would have, was he the defendant. A judgment is only a general lien on the land of the debtor, and the lien is subject to every equity which existed against the land in the hands of the debtor at the time of docketing the judgment. (4 Paige, 15. 6 Idem, 315, 316. 1 Idem, 128. 11 Wend. 447. Idem, 538. 6 Paige, 648.) Judgments in a court of equity are binding only on the real beneficial interest of the judgment debtor in the lands on which such judgments are legal liens. The declarations of H. Padgett, and of John Padgett the complainant’s father, were made before the purchase under the judgment against said John Padgett. They were admissible in evidence. They were as competent evidence as the declarations of the defendants would have been. (11 Wend. 536, 537. 7 Idem, 141. 14 Idem, 623, 235. 1 Adol. & Ellis, 114.) John Padgett, the father, undertaking to act as agent in obtaining the deed for the complainant, he could not purchase the lot for himself, and if he did take the deed in his own name, he would be considered in equity as holding the lot in trust for the complainant. (5 Paige, 656. 6 Idem, 364. 1 John. Ch. Rep. 397. 2 Idem, 257.) A trust resulted to the complainant. (2 Paige, 238. 1 John. Ch. Rep. 586.) A resulting trust may be proved by parol. (2 P. Wms. 549. 10 Ves. 517. 1 John. Ch. Rep. 588. 1 Wend. 648. 3 Binney, 304, 5. 19 Wend. 415.) If the father tbok the deed in his own name he became only a nominal trustee, and the complainant became the cestui que trust. And the acts of the father while such trustee cannot prejudice the equitable lights of the complainant. (1 Cruise’s Dig. tit. 12, Trust, ch. 4, § 6. 4 John. Ch. Rep. 138.)
   The Chancellor.

If the vice chancellor was right in the conclusion at which he arrived in the first branch of the decree in this case, that the complainant was the nominal grantee in the deed from the executors of Livingston, and that the legal title did not pass to the father of the complainant subject to a trust resulting by implication of law, the,bill should have been dismissed. For in that case the complainant had a perfect defence to the suit at law which had been brought against him by Lawrence and Keese ; and he had no right to come into this court, for an injunction, to deprive them of their legal right to a trial by jury to determine the question of fact whether the complainant or his father was the grantee in the deed of May, 1816. I think, however, the vice chancellor arrived at the wrong conclusion upon this question of factj and that if the complainant has any right to the premis.es in controversy it must be upon the ground of a trust arising in his favor by operation of law.

The description of the grantee in the deed, in this case, has reference to the time when it was dated and acknowledged, and was placed in the hands of Morris, the agent, to be delivered when the small balance of the purchase money then estimated as due should be paid. And if the father of the complainant was the person intended, by the description of “ John Padgett, junior, of Oxford,” at the date of the deed in May, 1816, he was still the grantee at the time it was actually delivered to the defendant Farnham, for him, ten years afterwards; although the elder John Padgett of Oxford, had died in the mean time. The word junior forms no part of the name of the grantee, but is merely descriptive of the person ; and is usually adopted to designate the son where the father bears the same Christian name as well as the family name. Where the word junior is left out, it is only presumptive evidence that the oldest person of the name, and who will answer the other matters of description in the deed, was the grantee intended ¿ and the presumption may be rebutted by showing that the grantor intended to convey to the son by the name and description contained in the deed. (Lepiot v. Browne, Holt’s Rep. 4. 6 Mod. Rep. 198, S. C. People v. Collins, 7 John. Rep. 549. Kincaid v. How, 10 Mass. Rep. 203.) Here the name and description of the grantee to whom the deed was to be delivered, and in whose favor the grantors intended it to operate as a conveyance of the legal title to the premises in question, was undoubtedly derived from Morris, their agent, at the time he remitted the draft on England. And they probably intended to convey to the person whom he then represented to them as having become entitled to Walker’s interest in the premises, under the contract of 1809. To ascertain who that was, we must resort to Morris’ testimony and to the facts then within his knowledge.

The evidence on the part of the defendants clearly shows that the father of the complainant was known as John Padgett, junior, long after the elder John Padgett had become blind and discontinued business. And he was sued by that name and description in 1815, in which suit, the judgment upon the report of referees was entered in February, 1816. Morris also says that when Padgett came to him with Walker’s contract, which was in January, 1816, he told him he had a father living, whose name was John, and had a son of the same name. And if the subsequent declaration of Morris to Walker could be received as evidence, it would show that he must have been requested at that time to send for the deed in the name of John Padgett, junior. That the person who gave that direction understood the designation of junior as applying to himself, at that time, is shown by the fact that he had, on a former occasion, refused to answer to the name of John Padgett; insisting that he Was John Padgett, junior. It is wholly improbable therefore that he would have requested to have the deed in the name of John Padgett, junior, or that Morris would have directed it to be made in that name, without any other designation, at the time this bill of exchange was delivered in January, 1816, if either of them had then understood that the conveyance was to be made to the complainant; who was then but seven or eight years old. The receipt for the draft on England, which was given at that time, also shows who was understood by all parties to be John Padgett, junidr. For that receipt shows that the draft, which the complainant’s father received and negotiated to Morris, was drawn in favor of the person to whom the receipt was given ; who is therein designated by the addition of junior to his name. And no one can for a moment suppose that the bill of exchange was made payable to the infant John Padgett, and not to his father. I think there is very little room to doubt, therefore, that Morris was requested at that time to send for the deed to be made out to John Padgett, junior ; and that it was then intended that the complainant’s father should be the grantee in the deed, by that description. That Morris must so have understood it is evident from another fact which occurred before any controversy had arisen on the subject. I refer to the endorsement made upon the contract, in May, 1824, when the complainant’s father, who had then become John Padgett the elder, gave his note for the balance which was then due. In that endorsement the addition of junior is no longer retained 5 but it is stated that when the note shall be paid a deed will be delivered to John Padgett or his assigns. And it must also be recollected that Morris then had in his possession the deed to the complainant’s father, which had been made out to him eight years before, with the addition of junior to his name, and ready to be delivered when the note for the balance of the purchase money should be paid. And this was the deed which was actually delivered to John Padgett, or to Farnham for him and with his assent, in December, 1826. Upon the whole evidence in the case, therefore, I have arrived at the conclusion that the father of the complainant was understood and intended to be the grantee of the premises, in the deed of May, 1816, by the name and description of John Padgett, junior, of Oxford ; and for whom that deed was subsequently delivered to Farnham, by the direction of Morris, under the arrangement testified to by Col. Clapp. The legal title to the land therefore was in the complainant’s father at the time of the sale of the premises by the sheriff, and passed to Farnham under the sheriff’s deed.

At the time of the purchase of the premises by Farnham, at the sheriff’s sale, the judgment of June, 1826, was a legal lien upon the equity of redemption of the complainant’s father in the old farm. And it appears from the testimony that the value of that farm, at the time of the foreclosure of the mortgage thereon to Walker, was much greater than the amount due on that mortgage. But the judgment of Farnham having been discharged of record, by the sale on the execution, the foreclosure would cut off the lien of that judgment upon the equity of redemption in the old farm. Farnham therefore probably lost his security for his debt by purchasing the Carson lot at the sheriff’s sale. I am not, therefore, prepared to say that he and those.claiming under him might not have claimed protection, as bona fide purchasers, if they had set up that defence in their answers, even if a resulting trust is established by the testimony. As a general .rule, a purchaser of the legal title, who receives his conveyance merely in consideration of a prior indebtedness, is not entitled to protection ; because he has lost nothing by the purchase. But the relinquishment of a valid security, which he before -held for his debt, and which cannot be revived so as to place him in the same situation substantially as to security as he was in prior to his purchase, may of itself be sufficient to entitle him to protection as a bona fide purchaser.

Upon the question whether a resulting trust is established in this case it may be necessary to advert to the testimony as to the declarations of the complainant’s father, and grand mother, for .the purpose of seeing how far those declarations were admissible in evidence. As a general rule, declarations made by a person in possession of real estate, as to his interest or title in the property, may be given in evidence against those who subsequently derive title under him; in the same manner as they could have been used against the party himself if he had not parted with his possession or interest. On the other hand it is equally well settled that no declarations of a former owner of the property made after he had parted with his interest therein, or which are overreached by the purchase of the party claiming through or under him, can be received in evidence to effect the legal or equitable title to the premises. (1 Cowen & Hill’s Notes to Phil. Ev. 644, 655.) Here the title of the defendants relates back to the docketing of the justice’s judgment, in June, 1826 ; or rather to the time of the delivery of the deed from Livingston’s executors to Padgett, on the 14lh of December thereafter, when that judgment became a lien upon the legal title of Padgett in the premises. And all declarations or admissions made by him subsequent to that time, either in favor of or against the validity of the title acquired under the deed of May, 1816, must be rejected as illegal and improper evidence.

The declarations or admissions of third persons are not legal evidence to establish or destroy a title to land, or to prove or disprove the existence of a trust, except as against those who have derived title to the premises in controversy from the persons making the declarations or admissions, and by a title subsequent. All the declarations of Hannah Padgett, therefore, which were not made in the presence of her son and either actually or tacitly assented to by him, should be rejected as illegal and improper evidence to prove the existence of any fact in this case. And after rejecting the admissions and declarations which ought not to have been received, there is not sufficient evidence in this case to satisfy me of the actual existence of a trust arising out of any valid agreement between Hannah Padgett and her son. The mere payment of the money by her would not raise a trust by implication, in favor of a third person, without the existence of an actual and binding-agreement on the part of her son to transfer his interest in the land to the complainant and to take a conveyance therefor in his name. A trust resulting from the mere payment of the money by Hannah Padgett would be a resulting trust in her favor; which trust, upon her death, would have descended to her children, and not to the complainant.

It is always unsafe to rely upon the uncertain recollections of a witness as to the existence of a contract, or agreement, which is to impair the title to real estate. And it may be remarked in this case, that although Walker recollects very distinctly the conversation which he had with Hannah Padgett from twenty to twenty-five years previous to the time when he is called upon as a witness, he is unable to tell whether that conversation took place before or after the death of her husband ; though he thinks it was afterwards. If he is right in this last supposition, I am satisfied this decree cannot be sustained. For his testimony would in that case directly contradict the. allegation in the bill that the bill of exchange on England was given for the purpose of carrying into effect the supposed agreement attempted to be proved by Walker and his wife. And it must be recollected that nothing was ever paid upon the contract, after the drawing of that bill of exchange in January 1816, until several years after the death of Hannah Padgett; when the defendant Farnham paid the judgment against her son, and took an assignment of it. Ho trust by implication of law, therefore, could arise out of a mere promise on the part of Hannah Padgett, to Walker, to pay the balance due on the contract which remained unpaid at the death of her husband, in 1817.

The testimony of Walker and wife, to whatever time it relates, does not prove the agreement stated in the bill. Walker says he first applied to Padgett, who said he could not pay, but he did not know but his mother would ; not that Padgett authorized the witness to contract for a surrender of his interest in the contract to her. The witness then went to see her, but not in company with her son, and she promised Walker that she would pay for the land and take a deed for little John. That conversation therefore created no trust; nor did it constitute an agreement on the part of the complainant’s father to relinquish his interest in the contract and to give up the land to his son. And the testimony of the complainant’s sister, as to what occurred in 1821, even if the witness’ recollection could be relied upon as to a conversation which occurred eighteen years before, when she was a mere child, does not establish the agreement set out in the complainant’s bill. Padgett had probably at that time become embarrassed,-and his mother was unquestionably solicitous to have him take the conveyance in the name of his son, so as to secure the property to the latter. But the testimony is altogether too loose and vague to justify this court in declaring a resulting trust, which is to unsettle the title to real estate after all the parties are dead who could explain the real facts of the case. I may also remark, that the testimony of the uncle of the complainant, as to Hannah Padgett’s want of pecuniary means for some time previous to her death, renders it highly improbable that she should, in 1821, have furnished the money to pay off what was then due on the contract. The more rational conclusion is, that the son applied to her for the loan of a small sum, and that she took that occasion to urge him to secure the farm for the grandson, by taking a deed in his name ; and that he replied " well,” to put an end to importunity on that subject.

The fact that there was no attempt to set up this claim in the lifetime of the complainant’s father, although he lived between five and six years after possession of the Carson lot was taken under the sheriff’s deed, and after the complainant became of age in 1829, is also a very strong circumstance against the probable justice of the claim which was subsequently set up. I have not therefore found sufficient legal testimony in this case to sustain a decree establishing a resulting trust in favor of the respondent. And as the whole of the decree appealed from is erroneous, it must be reversed j and the bill must be dismissed with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Crowder vs. Hopkins and others.
    The recollection of witnesses as to the hand-writing of an obscure individual, who had very few business transactions, are very little to be relied on after the lapse of the third of a century, in opposition to the certificate of an acknowledgment of the deed by the grantor in person.
    Previous to the act of February, 1797, relative to the acknowledgment of deeds, it was not necessary that the certificate should state the fact that the officer knew the person making the acknowledgment to be the grantor described in the deed, or that his identity had been proved.
    The act of January, 1794, relative to conveyances of military bounty lands, which required an actual acknowledgment by the grantor, and which prohibited the judge or master from taking the acknowledgment unless he knew, or had satisfactory proof, that the person making the acknowledgment was the same person described in the conveyance, did not require these facts to be stated in the certificate of acknowledgment.
    A deed of military bounty lands, executed in June 1797, does not come within the operation of the 5th section of the act of February 1798, in relation to the recording of deeds of military lands; being executed after the 1st of May, 1797. And if such deed was executed and acknowledged according to the act of January 1794, prior to December 1797, it was exempted from the operation of the act of February 1797, by the supplementary act of the 23d of February 1798.
    1843. April 4.
    The act to settle disputes concerning title to lands in the county of Onondaga is constitutional and binding as an act of limitations in relation to disputed titles; and an award of the commissioners, made under it, is conclusive as to the legal title unless a dissent was entered within two years from the date of such award.
    Such dissent was necessary to prevent the award from being a bar to a claim of title in any other person than the one in whose favor the award was made, although no person was in possession of the land when the award was made.
    To render a deed admissible in evidence as an ancient deed, an uninterrupted possession must have been held under and in conformity to it for thirty years.
    The acts and declarations of a grantor, made subsequent to his conveyance, arc not admissible as evidence against his grantee.
    This was an appeal from a decree of the vice chancellor of the seventh circuit, dismissing the bill in this cause. The original bill was filed in July 1822, by James Hole, the patentee of Jot No. 85 in Brutus, in the Military Bounty Tract, against W. Torrey and wife ; and also against twenty-four other defendants, most of whom then were, or theretofore had been, in possession of different portions of the lot, claiming the legal title to their respective portions under conveyances from Torrey. The subpoena was served upon Torrey and wife soon after the filing of the bill, and they put in their answer in May 1823. Most of the other defendants were served with process to appear and answer previous to July 1823, when the suit abated by the death of Hole. In 1827, Crowder, the appellant, to whom Hole had devised the premises, was substituted as the complainant in the suit, by a bill of revivor and supplement; and in the joint characters of devisee and executor of the original complainant. Torrey and wife put in their answer to the bill of revivor and supplement; and twenty-two of the other defendants, who were then living, put in their joint and several answers to the original bill and to the bill of revivor and supplement. After the proofs in the cause had been closed, Torrey, and some of the other defendants in the original bill and in the bill of revivor and supplement, died ; and the suit was again revived, against the heirs and devisees and against the personal representatives of such deceased parties.
    The facts in the case as to which there was no dispute were as follows : The lot in question was patented to Hole the original complainant. In December 1803, De Witt Clinton claimed to be the owner of the lot, and to have derived title thereto through divers mesne conveyances from Asa Ballard, who hád a deed for the lot, dated in August 1791, purporting to have been executed by Hole the patentee; which deed was filed and registered, as required by the act of January 1794 directing deeds and conveyances of lands in the military bounty tract, theretofore given, to be deposited with the clerk of the county of Albany and registered within a limited period. On the 9th of December 1803, Clinton conveyed 300 acres of the lot to J. Hamilton ; and in June 1804, he conveyed the residue of the lot, except the state’s 100 acres, to David Hopkins, who a few days thereafter conveyed the same to Ira Hopkins, one of the defendants in this suit. Soon after the execution of these deeds, Hamilton and Ira Hopkins went into possession of the parts of the lot conveyed to them respectively ; and they, or their grantees, continued in possession, claiming under that title, until September 1817, when they took conveyances from Torrey as hereafter stated. On the 3d of February 1798, Torrey procured a deed to be recorded in the clerk’s office of Onondaga county, in which county the lot was then situated, purporting to have been duly executed by Hole, on the 27th of June, 1797, and which was acknowledged by the grantor on the day of its date, before J. M. Hughes, a master in chancery in the city of New-York ; by which deed the premises were conveyed absolutely to Torrey, in fee, for the consideration of ¿6100. And in December 1799, the Onondaga commissioners awarded to Torrey the fee of the whole lot, as the absolute owner thereof, except the state’s 100 acres. From that award neither Hole, nor the persons in possession claiming under the Ballard title, entered any dissent.
    In 1817, Torrey commenced ejectment suits against Hamilton and Hopkins, and their grantees of different portions of the lot 5 and they being advised by their counsel that they could not successfully defend their possessions under the Ballard title, on the ground that the award not having been dissented from was conclusive in favor of the validity of Torrey’s title to the lot, agreed to compromise with him by paying at the rate of $9 an acre for the land, and the costs of the ejectment suits. The defendant Burn-ham, who had a power of attorney for that purpose from Torrey, thereupon executed deeds in fee, in the name of Torrey, to the occupants of the premises, for their respective portions of the lot ; which deeds were duly acknowledged and recorded. A part of the purchase money was paid upon the execution of the deeds, and mortgages were given for the residue, by the grantees, upon their several lots; some of which mortgages were paid in full before the commencement of this suit, and before the purchasers had notice of the claim made by Hole in his bill. And the residue of the purchase money was paid to Burnham, as the agent of Torrey, after the death of Hole and before the suit was revived by Crowder in 1827. Some of the grantees in the deeds from Torrey also conveyed their interests in the premises to bona fide purchasers previous to the commencement of this suit; all of which purchasers and sub-purchasers, with the exception of one or two, were made defendants in the suit. And five or six persons were made defendants who never had or claimed any interest in the land either as purchasers or otherwise, and who answered and disclaimed.
    The substance of the charge in the complainant’s bill was that Hole never sold or knowingly conveyed the lot to Torrey ; that he had been a waiter to Torrey, as an officer in the army, and had great confidence in him ; that in 1796 he had attempted to take possession of the lot and was forcibly expelled by pretended settlers thereon ; that Torrey, in June 1797, promised to obtain the possession of the premises for him if he would give him a power constituting him his agent for that purpose ; that Torrey afterwards brought him an instrument in writing to be executed, representing it to be such a power, and which he executed without reading or hearing it read ; and that by virtue of such pretended power Torrey had obtained possession of the lot, and had sold the same to the other defendants, all of whom well knew that Torrey had no legal or equitable titl.e to the premises, and had no right to dispose of or deed the same. The answer of Torrey positively denied every allegation of fraud stated in the bill, or that he ever assumed to act as the agent of Hole, or pretended to receive from him a power in relation to the lot in question. On the contrary he stated that Hole requested him to buy the lot, which he at first refused to do, but finally consented to buy it for ¿6100, which he afterwards paid him ; that Hole executed the conveyance as an absolute deed, and acknowledged it before Gen. Hughes, the master; and that the receipt for the purchase money was endorsed upon the deed, upon the suggestion of the master that it was the usual and proper course, though the payment was not actually made at that time. Hopkins and Treat, two of the defendants, also stated in their answers that in the summer of 1809 or 1810, while they were in possession of parts of the lot, claiming under the Ballard title, Hole called on them and requested them to maintain him ; and that on being told that he had sold and conveyed the lot to Ballard under whom they had derived their title, he said they had not got a good title, for he had sold the lot to W. Torrey and had given him a deed therefor, and that Torrey was the owner and would hold the lot.

      J. W. Gerard, for the appellant.

      John Porter, for the respondents.
   The Chancellor.

The question whether the deed from Hole to Torrey, of the 27th of June, 1797, is genuine does not properly arise in this case, as there is no charge in the complainant’s bill that the deed is a forgery. The only charge which, if proved, would entitle the complainant to equitable relief is that Torrey agreed to act as his agent, to recover the land from settlers who were holding it adversely, and that under pretence of getting Hole to execute a power of attorney to recover the land, he had obtained from him a conveyance of the premises. For if the decision of the case is to turn upon the question whether the defendants have established a paper title to the premises, the decree of the vice chancellor is unquestionably right. The recollection of witnesses as to the character of the handwriting of an obscure individual, who had very few business transactions, are very little to be relied on, after a lapse of the third of a century, in opposition to the certificate of the acknowledgment of the deed by the grantor in person. And I am satisfied that the objection to the certificate of acknowledgment was not well taken. Previous to the act of February, 1797, relative to the acknowledgment of deeds, it was not necessary that the certificate should state the fact that the officer knew the person who made the acknowledgment to be the grantor described in the deed, or that his identity was proved. (Bradstreet v. Clarke, 12 Wend. Rep. 673.) The act of January, 1794, relative to conveyances of military bounty lands, (3 Greenl. Laws, 45,) which required an actual acknowledgment by the grantor, prohibited the judge or master from taking the acknowledgment unless he knew or had satisfactory proof that the person making the acknowledgment was the same person described in the conveyance ; but it did not require that fact to be stated in the certificate. And in consequence of this defect in the act of 1794, the 5th section of the act of the 12th of February, 1798, was passed, prohibiting the recording of deeds of military bounty lands executed previous to the 1st of May preceding, when the act of February, 1797, went into effect, unless they were proved or acknowledged in the manner directed by the last mentioned act. (1 R. L. of 1813, p. 216. Jackson v. Shepherd, 2 John. Rep. 77.)

The deed in question, however, did not come within the operation of this section of the act of 1798, because it was executed after the 1st of May, 1797. And being executed and acknowledged according to the act of 1794, relative to conveyances of military bounty lands, and prior to the 1st of December, 1797, it was exempted from the operation of the act of February, 1797, by the supplementary act of the 23d of February, 1798, (3 Greenl. Laws, 328 ;) which last act in effect extended the time when the act of 1797 should take effect, until the 1st of December, instead of the 1st of May in that year. The deed to Torrey was therefore properly recorded, being acknowledged by the grantor according to the act of 1794, and his identity being also proved by the affidavit of one of the subscribing witnesses, taken before the master and endorsed upon the deed immediately below the certificate of acknowledgment and at the same time.

Again ; upon the question whether Torrey was the owner of the premises previous to his conveyances to Hopkins, Hamilton, Taylor, Burns, Loop, Dixon and Treat, so far at least as relates to the legal title, the award of the commissioners was as conclusive against Hole as it was against the defendants who were then in possession, claiming under Hole’s previous deed to Ballard. In Jackson v. Griswold, (5 John. Rep. 140,) the supreme court decided that the act, under which this award was made, was constitutional and binding as an act of limitations in relation to disputed titles ; and that if there was no dissent filed within the time prescribed the award was conclusive. And a dissent was necessary to prevent the award from being a bar to a claim of title in any other person, although no person was in possession of the land when the award was made. (Jackson v. McKee, 8 John. Rep. 429. Jackson v. Swartwout, Idem, 490.) As between persons claiming the premises under Torrey, and others who claim title under Hole either through the Ballard deed or otherwise, the award is conclusive in favor of the title of Torrey. But if Hole never gave the deed to Torrey, there is no privity between him and Torrey ; and the defendants who have derived title to the premises through the Ballard deed, as well as from Torrey, may set up the award to Torrey as a bar to the legal claim of Hole or his devisee, or may set up the validity of the Ballard deed as against them, notwithstanding the award.

The deed to Ballard, and the several mesne conveyances under which Hamilton and Hopkins originally claimed title to the premises, were distinctly referred to in the answer of the occupants of the lot. It was not necessary, therefore, that those conveyances should have been made exhibits before the examiner, or that a notice of the intention to use them on the hearing should have been given. But if the Ballard deed was not duly proved or acknowledged, I think it was not admissible in evidence as an ancient deed. For it was cut off by the award in favor of Torrey. And the occupants of the land having taken title under Torrey, in 1817, their possessions had not been held under and in conformity to the deed to Ballard, for thirty years, within the spirit of the rule on that subject. (Jackson v. Blanshan, 3 John. 297.) From some of the declarations of Hole there is reason to suppose the deed to Ballard was genuine, and that he was conscious of having done wrong in conveying the property the second time, to the injury of those who were in possession under the Ballard deed. But it is not necessary for the occupants of the land to resort to the Ballard title for their protection in this case ; for I am satisfied the complainant has wholly failed in making out a case entitling him to any relief against them.

None of the acts or declarations of Torrey which took place or were made after the conveyances to the occupants of the land, in 1817, can be received as evidence against his co-defendants ; either to show that he acted as the agent of Hole to obtain the land from the settlers, or that he was conscious of having defrauded him. And the part of the answer in which it is stated that Hole told Hopkins and Treat that he had sold and conveyed the land to Torrey, is responsive to the allegation in the bill that when Torrey sold them the land they knew he had no title to the land, and had no right to dispose of it. It is therefore evidence in their favor. And it is also supported by the testimony of Barber, who swears that Hole said, while he was at Hopkins’ house in 1809 or 1810, that he had sold the lot to Torrey and that Torrey had a good title.

Nor do I think there is any sufficient proof to destroy the positive answer of Torrey, directly responsive to the bill, denying that he assumed to act as the agent of Hole in the recovery of the land ; and stating that he purchased the land for the price of =6100, and that it was conveyed to him by Hole absolutely and unconditionally.

The decree of the vice chancellor is therefore affirmed, with costs as to all the defendants. And the decree of affirmance is to be entered nunc pro tunc as of the time of the argument of the appeal.


text:
    Lain vs. Lain.
    1843. April 4.
    The revised statutes, by necessary implication, allow an appeal from a decree of the court of chancery in relation to the general costs of a suit in that court. But no appeal lies from a decision as to mere interlocutory costs, when the giving or refusing of costs is in the discretion of the court.
    In analogy to the law in relation to appeals from decrees of courts of chancery in relation to costs, an appeal lies to the chancellor from a decision of a surrogate, in relation to the general costs of a suit or proceeding before him to call an executor or administrator to account.
    This was an appeal from so múch of the sentence and decree of the surrogate of the county of Yates as awarded costs to the administrator, to be paid personally by the party who had instituted proceedings against him to compel him to account.

      James Taylor, for the appellant.

      D. B. Prosser, for the respondent.
   The Chancellor.

The objection that an appeal does not lie from a decree of a surrogate upon a question of costs merely, is not well taken. Previous to the adoption of the revised statutes, it was an established principle that an appeal would not lie to reverse the decision of the court below upon a question of costs only; where the giving or refusing costs was a matter of discretion merely. And such is still the law in relation to interlocutory costs; but not as to the general costs of the suit. (Winslow v. Collins, 3 Paige’s Rep. 88.) The exceptions to the general rule on this subject, in the English court of chancery, are stated by Lord Cottenham in Angell v. Davis, (4 Myl. & Craig’s Rep. 360.) Or rather, he shows a class of cases that do not come within the rule, because the giving or refusing costs, in the cases to which he refers, depends upon certain fixed principles rather than upon the exercise of the discretion of the court. (See also Buloid v. Miller, 4 Paige’s Rep. 473.) The legislature however has, by necessary implication, changed the law as to the right to appeal from a decision of the court of chancery in reference to the general costs of the cause, or suit, by the provision of the revised statutes which fixes the time for appealing in such cases. (2 R. S. 605, § 79.) And the settled practice of this court and of the court for the correction of errors now is, to permit an appeal to be brought from a decree of the court below involving the question as to the equitable right to the general costs of the cause ; although the giving or refusing of costs was a matter of discretion merely, and depended upon the facts and circumstances of the particular case, and not upon any certain and fixed principles of law. In analogy therefore to this change of the law as to appeals in relation to costs resting in discretion merely in suits commenced in chancery, I think this court is bound to sustain an appeal from a decision of a surrogate, in relation to the general costs of a suit or proceeding before him to call an executor or administrator to account.

Having arrived at the conclusion that an appeal lies in such a case, I have looked into the return of the surrogate, to see whether there was any sufficient grounds for the objection that he had erred in charging the appellant with the costs in this case. By the 10th section of the title of the revised statutes relative to surrogate’s courts, (2 R. S. 223,) it is provided that in all cases of contest before a surrogate’s court, such court may award costs to the party in the judgment of the court entitled thereto, to be paid by the other party personally, or out of the estate which is the subject of such controversy. This was a case, therefore, in which the surrogate was authorized to charge the costs of the proceeding upon the party who had. instituted the suit for an account and had failed therein, if the surrogate, upon the facts of the case, was satisfied that such suit ought not to have been commenced. And I concur in the conclusion at which he arrived, that the costs of this unnecessary and, useless proceeding ought not to be borne by the administrator, or by the estate which he represented, but by the appellant personally.

The sentence and decree of the surrogate is therefore affirmed with costs, and interest on the amount of costs awarded by the surrogate, as damages for the delay caused by this appeal. (2 R. S. 618, § 35.) The interest must be computed from the time when the costs were payable by the decree of the surrogate.


text:
    Bowers and wife vs. Smith and others.
    An executor takes the legal estate in the personal property of the testator as trustee for the legatees or next of kin ; and the court of chancery having general jurisdiction in cases of trusts, any person having an interest in such property, either as a legatee or distributee of the decedent, may file a bill in that court, against the executor, to have the construction of the will settled, or to have the question as to the validity of any of its provisions determined, so far as concerns the interest of the complainant in the property; and to have a decree against such executor for such parts or portions of the property as he is legally and equitably entitled to receive.
    Where the real estate of the testator is devised to a trustee upon distinct and independent trusts, some of which trusts are valid and others are invalid, there is a resulting trust in favor of the heir at law as to so much of the property as is not legally and effectually disposed of by the will; where the interest of such heir is not turned into a legal estate by the provisions of the revised statutes. And the cestui que trust, in such cases, may file a bill in chancery to have his rights in the estate of the testator settled and ascertained ; and to have the trusts of the wil learned into effect, so far as they are valid and effectual.
    So in cases of mixed trusts of both real and personal property, the court of chancery is frequently compelled to decide questions as to the validity and effect of contingent limitation in a will to persons who are not in esse, in order to make a final decree, and to give the proper instructions and directions'tol the executors and trustees in relation to the execution of their trust.
    But the heirs at law of the testator, or his devisees, who claim mere legal estates in his real property, are not authorized to file a bill in chancery for the sole purpose of obtaining a judicial construction of his will. The decision of legal questions arising upon the construction of a will, in such a case, belongs exclusively to the courts of law ; except where such questions arise incidentally in the court of chancery, and where that court has obtained jurisdiction of the case for some other purpose.
    A general bequest/tf the residue gives to the residuary legatee all the personal property of the testator which is not otherwise legally and effectually disposed of by the will.
    The husband is not the proper party to file a bill for the recovery of his wife’s separate estate. But whether the defendant in such a bill by answering it generally, without raising the objection in such answer that it is not properly filed in the name of the husband and his wife, and that it should have been filed by the next friend of the wife, does not waive such objection; Quaere ?

    Where the testator devises an interest in his real estate to his wife in lieu of dower, and she declines to accept such provision but elects to take her dower, it seems that the provision intended for her by the testator, in lieu of dower, is a contingent interest in real estate, which, in the event contemplated by the testator, goes to the devisee of the real estate, or to the residuary devisee.
    A residuary devise of real estate carries to the devisee not only the real estate of the testator which has not been devised to others, but also reversionary and contingent interests in the estate specifically devised, which, in the events contemplated by the testator, are not wholly and absolutely disposed of by his will. And the decision in James v. James, (4 Paige’s Rep. 115,) was not intended to impugn this principle, but was founded upon the peculiar language of the will in that case.
    An infant defendant does not lose his right to object to the jurisdiction of the court, at the hearing, upon the ground that the remedy is at law, although his guardian ad litem has omitted to raise such objection in his answer.
    Where there is an absolute devise of an estate for life to some of the heirs of the testator, and the devise of the remainder of the same property to others is invalid, the devisees of the life estate will not be compelled to elect between the life interest thus devised to them and their shares in the remainder which is cast upon them by operation of law as heirs of the testator.

      1843. April 4
    The bill in this cause was filed by the complainant, J. Bowers, in the names of himself and wfife, to obtain a construction of the will of his deceased father in law, Elias Smith. The testator died in 1839, seized and possessed of a large estate, real and personal, leaving his wife and four children surviving him. After providing in his will for the payment of his debts out of his personal estate, the testator, by the second clause of his will, devised to his ■wife Loranna Smith, and to his daughter Sarah Maria, the wife of J. Bowers, jointly, the use, benefit, and enjoyment of a farm, and of certain other real estate particularly described in the will, for and during their joint lives and the life of the longest liver of them. And in case his said daughter should have a child or children living at the time of her death, he gave and devised that part of his real estate to such child or children, on their arriving at the age of twenty-one, in fee, as tenants in common. But if she should die without leaving any child living at the time of her death, he devised the premises to his grandson, W. Lawrence, in fee, on his arriving at the age of twenty-one. And in case he died under twenty-one the testator devised the premises to his son, Joseph W. Smith, in fee.
    By the third clause of the will, the testator bequeathéd to his wife and his said daughter all his household furniture, and all his stock and farming utensils on the farm devised to them, with the grain and provisions on hand, and the grain in the ground, to them and to their heirs and assigns forever. And he declared that the devise and bequests to his wife were in lieu of dower; and that the devise and bequests to his said daughter were for her separate use and benefit, to be held, used, and enjoyed by her free from all debts and demands and from the control of her husband.
    By the fourth clause the testator devised to his daughter, Phebe T., the wife of L. W. Lawrence, during her natural life, another farm and certain other portions of his real estate, limiting the remainder in fee to her children who should be living at the time of her death. And by the fifth clause of his will he gave and bequeathed to his daughter, Mrs. Lawrence, absolutely, the stock and farming utensils on the farm so devised to her and her children.
    By the sixth clause of his will, the testator devised to his other daughter, Hannah Amelia the wife of J. C. Platt, during her natural life, a farm and other lands specified in the will. And after her decease he devised the same premises in fee to such of her children as should be living at the time of her death, and who should attain the age of twenty-one, as tenants in common. But if she should die without leavingany child or children who should arrive at the age of twenty-one years, then he gave and devised that portion of his estate to his son, J. W. Smith, in fee.
    And by the seventh clause the testator devised and bequeathed all the rest and residue of his real and personal estate to his said son and to his heirs and assigns forever. He also appointed his son and his son in law, L. W. Lawrence, the executors of his will. The son, however, died a few days after his father, and the will was proved by the surviving executor, to whom letters testamentary were granted.
    The complainants never had any children. Mrs. Lawrence and Mrs. Platt had each three children at the time of filing the complainants’ bill in October, 1839 ; the eldest of which children was fourteen years of age. It did not appear by the bill or the answers whether the son of the testator left any children ; nor was it stated in the pleadings whether he left a will or died intestate.
    The complainants’ bill, which was filed shortly after the death of the testator, after setting out the provisions of his will and the state of his family at the time of his death, the subsequent death of his son, and the granting of letters testamentary to the surviving executor, alleged that the widow had not yet elected whether she would claim her dower in the testator’s estate or accept of the provision made for her in lieu of dower. The bill also stated that various questions had arisen upon the will as to the nature and extent of the estate and interest which Mrs. Bowers took or derived under the will, and whether some of the devises and limitations therein contained were not void as tending to create perpetuities beyond the limits allowed by law. That among other questions which had thus arisen were the following, to wit: whether the real estate devised to Mrs. Bowers and her mother was devised to them as joint tenants or as tenants in -common ; and whether there was any distinction in that respect between the real and personal estate devised and bequeathed to them 1 whether, if the widow should elect to take her dower in the real estate instead of the provision made for her in the will, such election would destroy the joint tenancy in the real or personal estate, if the will created such a joint tenancy, or what else would be the legal effect thereof 1 And what would be the effect and operation upon the estate of Mrs. Bowers, under the second and third clauses of the will, should the widow elect to take the provision made for her in the will, in lieu of her dower, and proceed to make partition of the real estate so devised to her, which the widow threatened to do 1 Whether the devises over in remainder contained in the second clause of the will were not void on the ground that they might suspend the power of alienation for a longer period than during the continuance of two lives in being at the death of the testator 1 and if the first or the second of those limitations over was void, whether the subsequent limitation would also fail % Whether the limitation over to the children of Mrs. Bowers would, upon the birth of a child, become vested before the child arrived at the age of twenty-one; and if not, in whom the remainder in fee in the premises would vest in the meantime ? Whether the limitations over of the remainder in fee, in the real estate devised to Mrs. Platt, by the sixth clause of the will, were not invalid upon the grounds stated in reference to the limitations over in the second clause ? Whether, if any of the limitations in the will were void or invalid, the heirs at law of the testator to whom valid and effectual bequests and limitations were made, by the will, could participate as such heirs in the portions of the estate as to which the devises were invalid, without relinquishing the interests held by them under the will ? Whether, if the limitations over in the second and sixth clauses of the will were invalid, all the other devises and bequests in the will,.except the residuary devise and bequest to the testator’s son contained in the seventh clause, w'ere not also void 1 And whether, if the residuary devise and bequest to J. W. Smith the son was valid, the heirs at law or devisees of such son could, as heirs at law of his father, participate in any part of the estate not embraced in the residuary bequest contained in the said seventh clause %

    The complainants charged and insisted, in their bill, that as they were advised and believed the said will was uncertain or void as to various devises, bequests, and provisions therein contained ; which required to be expounded, ascertained, and settled by the decision of this court, in order that the complainants might ascertain and be assured of the rights of Mrs. Bowers under the will, or as one of the heirs at law of the testator. They therefore prayed, that the intent and meaning and legal effect and operation of the will might be judicially settled and expounded, and that such of its provisions as were contrary to law and void, might be so declared, adjudged and decreed.; that by the judgment and decree of the court the true intent and meaning and legal effect and operation of the will might be judicially expounded and finally ascertained and settled ; that such of its provisions as were contrary to law or otherwise invalid, might be declared and adjudged to be so, and that the effect and operation thereof upon the other parts of the will which were valid and effectual might also be declared, adjudged and decreed; and that the rights and interests of the complainant, Mrs. Bowers, .in the property and estate of her father, either under or by virtue of the will or otherwise, might be definitively ascertained ; or that the complainants might have such other or further relief in the premises as should be just and equitable.
    The widow of the testator, and his two daughters, Mrs. Lawrence and Mrs. Platt, together with their husbands, put in their joint and several answer, in which they admitted the allegations in the bill as to the making of the will, the death of the testator, the state of his family at the time of his death, the subsequent death of his son and the granting letters testamentary to L. W. Lawrence, the surviving executor, as stated in the bill. But they stated that the widow had elected to accept the provision made for her, by the will, in lieu of dower in the testator’s estate. And they insisted that the terms of the will were clear and explicit, and that the devises and bequests contained therein were not, nor was either of them contrary to law; that there was no necessity for submitting the will to the court for its advice and direction ; and that the complainants’ bill should therefore be dismissed with costs. The other defendants, who were the six infant children of Mrs. Lawrence, and of Mrs. Platt, put in a general answer by their guardian ad litem. And the cause was heard upon the bill and answers.

      M. S. Bidwell, for the complainants.

      George Wood, for the defendants.
   The Chancellor.

The bill in this case appears to have been filed upon the supposition that it is a part of the established jurisdiction of the court of chancery to settle all questions which arise as to the construction and validity of the provisions of a will of real estate, as W'ell as of personal property. This court has jurisdiction in cases of trust. And the executor always takes the legal title to the personal estate of the testator as a trustee. For so far as the provisions of the will are valid he holds the property in the character of trustee for the persons to whom it is bequeathed. And if there is any part of such property, or any interest therein, which is not legally and effectually disposed of by the will, he holds it as trustee for those who are entitled to it under the statute of distributions. Any person claiming an interest in the personal estate of the testator, therefore, either as a legatee under the will, or as entitled to it under the statute of distributions, may file a bill against the executors, to settle the construction and ascertain the validity of the provisions of the will, so far as the complainant’s interest is concerned; and to enable him to obtain from the executors such portions" of the estate as he is either. legally or equitably entitled to. So also, if the real estate of the testator is devised to a trustee upon distinct and independent trusts, some of which trusts are valid and others invalid, there is a resulting trust in favor of the heir at law as to so much of the property as is not legally and effectually disposed of by the will; where the interest of each is not turned into a legal estate by the provisions of the revised statutes. The cestui que trust in such cases, also, may file a bill in this court to have his rights as cestui que trust in the estate settled and ascertained ; and to have the trusts of the will carried into effect so far as they are valid and effectual. And where there is a mixed trust of real and personal estate .it frequently becomes necessary for the court to settle questions as to the validity and effect of contingent limitations, in a will, to persons who are not in esse; in order to make a final decree in the suit, and to give the proper instructions and directions to the executors and trustees in relation to the execution of their trust. (Lorillard v. Coster, 5 Paige’s Rep. 215. Hawley v. James, Idem, 442.) But I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary, the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers; or where the court has obtained jurisdiction of the case for some other purpose.

No possible question can arise in this case, and between these parties, as to the validity of the bequests of the will as to any part of the personal estate of the testator. For the residuary bequest to the son gave to him all the personal property of the testator, and every estate and interest therein which had not been legally and effectually disposed of by the will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige's Rep. 608.) It does not appear in this case who are the next of kin of J. W. Smith, or whether he left a widow or children, or made any testamentary disposition of his property at his death ; nor are his personal representatives before the court in this suit. There is in fact no question as to the rights of Mrs. Bowers in the personal property bequeathed to her and her mother by the third clause of the will. For it is bequeathed to them both, absolutely and unconditionally, except that Mrs. Bowers’ share is declared to be for her separate use, free from the control of her husband. One half of it therefore belongs to her, as her separate estate, and the other half belongs to her .mother. But if it was necessary for the court to settle any question as to that part of the testator’s personal property, this suit is not properly brought, to settle that question, in the name of the husband and wife jointly ; (See 2 Sim. & Stu. Rep. 464 ; 2 Keen's Rep. 73 ; 1 Beav. Rep. 96 ; and 8 Sim. Rep. 551;) though the defendants have probably waived the objection that the husband is not the proper party to file a bill for his wife’s separate estate, by answering the bill without objection. There is no allegation in this case, however, that the executor has refused to assent to the legacy in the third clause of the will; nor is it stated that Mrs. Bowers has not received her share of the personal property bequeathed to her and her mother.

The defendants in their answers in this case have made no objection to the jurisdiction of the court to declare the construction of the will. And if all those who are or may be affected by the decision of the questions arising upon the various provisions therein contained were before the court, so as to make the decree valid and effectual and binding upon their rights, it might be proper for me to proceed and settle the questions raised in the complainant’s bill. But upon examination it will be found that there is no question of importance stated in the bill in which other persons, who are not before the court, nor properly represented here, may not be interested in the decision. And there are very few questions raised in which the parties to the suit appear to have any interests adverse to each other. Tire.question whether Mrs. Bowers and the widow are joint tenants in the real estate devised to them by the second clause of the will, or tenants in common during their joint lives, with cross remainders in the share of each to the survivor for life, appears to be of no importance whatever. For in either case partition of that part of the testator’s estate may be made between them for their joint lives, under the provisions of the revised statutes. (2 R. S. 317, § 1.) And as the widow elected to take the provision, in lieu of her dower, within the time allowed to her by the statute for that purpose, it is unnecessary to decide what would have been the rights of the heirs, or other devisees of the testator, in the real estate devised to her, if she had elected to take her dower in all the real estate of her deceased husband. The personal property bequeathed to her in lieu of dower would unquestionably have gone to the residuary legatee of the testator, as personal estate not effectually disposed of by the will, in the event which would have occurred if she had elected to take her dower. And I am inclined to think that the interest devised to her in the real estate would also have gone to the residuary devisee, under the seventh clause of the will, as a contingent interest in real estate which, in an event contemplated by the testator, had not been disposed of by his will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige’s Rep. 600.) The decision of this court in the case of James v. James, (4 Idem, 115,) was founded upon the peculiar language of the general trust clause in the will. It was not intended to impugn the general principle, that a residuary devise of real estate carries to the devisee, not only the real estate of the testator which has not been devised to others, but also reversionary and contingent interests in the estate specifically devised, which interests, in the events contemplated by the testator, were not otherwise wholly and absolutely disposed of by his will.

There is a question of doubt in this case whether the limitation over to the children of Mrs. Bowers, in case she shall have any who shall survive her, is not invalid ; if it can only take effect, in favor of such children, when they arrive at the age of twenty-one. For if she should have children who are under age at the termination of her life and the life of her -mother, such a limitation to the children, if valid, would suspend the power of alienation for more than any two lives in being at the death of the testator. But if this limitation to the children of Mrs. Bowers is to take effect, in their favor immediately upon the termination of the life estate of their mother and grandmother in the premises, and is only to be divested in favor of the residuary devisee, or his heirs, in the event of the death of the children respectively under the age of twenty-one, which perhaps was the intention of the testator, this limitation to the children, as well as the contingent limitation over to the residuary devisee under the seventh clause of the will, may be found to come within the exception mentioned in the 15 th section of the article of the revised statutes relative to the creation and division of estates. (1 R. S. 723.) The complainants however have no authority to represent the rights of their future issue; and I am not aware that any of the parties now before the court have succeeded to the rights of the residuary devisee. It would be therefore improper to express any opinion as to the validity of these contingent limitations, when all the parties now before the court appear to have a common interest in defeating them; and while it is yet doubtful whether the events contemplated by the testator will ever arise.

The same questions substantially arise in reference to the substituted limitation in favor of W. Lawrence, the grandson, in case Mrs. Bowers dies without children j as the language of the devise to him is the same. And the only difference in the two cases is, that there is a direct limitation over to the testator’s son, by the second clause of the will, in the event of the grandson’s dying under twenty-one, instead of leaving that limitation over to the operation of the general residuary clause. It is true the substituted remainder-man is before the court; but he is still an infant. A decree ought not therefore to be made at this time which might have the effect to compromit his rights upon a naked question of law, and where there is no necessity to adjudicate upon such rights. And being an infant he has not lost the right to insist that the court should not assume jurisdiction in this case, although his guardian ad litem has not raised that question by his answer. For the same reasons the court should not, at this time, attempt to settle the question as to the rights of the children of Mrs. Platt, under the contingent limitation to them contained in the sixth clause of the will; although three of her" children, who may survive her, are also represented here by their guardian ad litem.

Neither of the three daughters of the testator has any thing more than a life estate, devised to her, in the portion of the real estate which is afterwards contingently devised to her children ; and there is no possible doubt as to the validity of the devise of these estates for life. The invalidity of all or any of the subsequent limitations, therefore, would not present a case in which the devisees for life would be compelled to elect, between the property devised to them by the will, and their shares in the remainder which is cast upon them by operation of Iqw, as the heirs of the testator, if any other provisions of the will should eventually prove to have been inoperative and void.

I have not therefore been able to find any ground on which this court would be justified in retaining jurisdiction of this case, for the purpose of settling any of the various questions raised in the bill, in favor of the complainants. The bill must therefore be dismissed with Costs ; but without prejudice to the rights of the complainants or any of the other parties to -this suit in any future litigation.


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    Knapp vs. Alvord.
    1843. April 4.
    Where a cabinet maker, upon his going abroad on account of ill health, employed an agent to carry on his business, and gave him the full and entire possession and control of his property, with a written power to sell all or any of the, furniture, stock and property which might at any time be in his hands, and to apply the proceeds to the security or payment of a specified note, endorsed by such agent and a third person, or of any other note given in renewal of the same, or for which the agent might become responsible; Held, that the possession of the property being connected with the power for the protection and indemnity of the agent, as well as for other purposes, the agent had a power coupled with an interest, which survived, upon the death of the cabinet maker while he was abroad ; and authorized the agent to sell the property, for his protection and indemnity, after such death.

      Held further, that this equitable mortgage of the property being accompanied with an actual delivery of the property to the agent, and a continued possession in him, it was not necessary to file it as a chattel mortgage to make it valid.
    A factor has a lien upon the property of the principal in his hands, and may retain for a general balance, including responsibilities incurred in the execution of his agency.
    This case came before the court upon exceptions to the report of a master, to whom it was referred to take and state the account of the defendant, as the administratrix of W. Alvord, deceased, and to report the amount due to the complainant and to the other creditors of the decedent. And the only question was as to the right of J. Meads to retain, out of the estate of the decedent, the amount of two notes upon which he was endorser j the estate of the decedent being insufficient to pay all his debts. The master decided in favor of the right of Meads to retain, and allowed to the administratrix the amount retained by Meads out of the proceeds of the property of the decedent, and which had been so retained with her assent. Rathbone and Smith, two of the creditors who had come in and proved their debts under the decree, excepted to that part of the report. The facts on which the question arose were as follows':
    The decedent, W. Alvord, for some time previous to his death, carried on the business of a cabinet maker in the city of Albany. In the fall of 1837, Alvord being in bad health, Meads, who had formerly been his copartner, consented to assist him gratuitously in the care and management of his business. In the latter part of November in that year, the decedent having determined to spend the winter at the south on account of his health, applied to Meads to take the general charge of his business during his absence ; to which Meads consented. At that time a note of $1800, drawn by Alvord and endorsed by Whitney and Van Vechten, as his sureties, was held by the Mechanics & Farmers Bank, and was payable on the 9th of December. Alvord also owed another note to H. Rector, for $428,34, endorsed by Meads, and which was payable on the 12th of December, 1837. To provide for the payment of these notes, or others which might be given in renewal thereof, and to enable Meads the better to manage his business during his anticipated absence, Alvord executed an instrument, bearing date the 22d of November, 1837, constituting Meads his agent and attorney to carry on, conduct, and manage his business as a cabinet maker, in his absence ; to purchase and procure stock and materials; to hire, pay, and discharge workmen •, to collect and receive moneys, &c., and to apply the same in his said business, or to the support of the decedent’s family, or to the payment or security of his debts and liabilities. That instrument or power also contained the following clause : “ And I hereby expressly authorize and empower the said Meads to sell, assign, transfer and dispose of, at any time or in any manner which he may deem necessary or advisable, all or any furniture, stock, property, notes, claims, or other effects whatsoever, which now are or may at any time be in his hands, belonging to me, and to apply the same and the proceeds thereof to the security or payment, in whole or in part, of a certain note for about the sum of $1800 drawn by me and endorsed by S. Whitney and J. T. B. Van Vechten, and discounted at the Mechanics and Farmers Bank ; or any note or notes which may be given in lieu or renewal thereof or of any part thereof; and to the payment or security of any note or notes drawn by me, and endorsed or which may have been endorsed by the said Meads, or for which he may become responsible.” The day after the execution of this instrument the decedent attended at his shop and delivered over his account books, &c. to Meads, and put him into actual possession and charge of the shop and business and the property therein ; and Meads then opened or caused to be opened a new cash book in the presence of Alvord. On the same day Alvord gave to Whitney, one of the endorsers upon the $1800 note, a mortgage upon the furniture, lumber, and stock in trade of' the said cabinet maker’s business, to secure him as the endorser of that note or of any other note which might be given in lieu or renewal of it j which mortgage was filed in the clerk’s office on the 26th of December thereafter. Alvord left for the south a day or two after the date of these instruments, having^ left his signatures in blank with Meads to enable him to renew the notes if necessary ; and he died at Savannah, in Georgia, on the 18th of December, 1837.
    When the $1800 note became due, on the 9th of December, Meads wrote a new note for the same amount over one of the blank signatures, payable in ninety days, which was also endorsed by Whitney and Yan Yechten, and given to the bank in renewal of the note. And as the bank 1 required further security, Meads put his name upon the note as a subsequent endorser. On the 12th of December^ when the note of Rector became due, Meads filled up another note over one of Alvord’s blank signatures, and endorsed the same himself and gave it in renewal of the old note ; which note was also made payable in 'ninety days. Both of these renewal notes were duly protested for nonpayment, and were afterwards taken up by Meads as endorser. After the death of Alvord, Meads claimed a lien upon the property and assets of the cabinet making business, in his hands, for all responsibilities which he had incurred, as endorser upon these notes or otherwise ; and he continued in the possession and control of the property, with the assent of the administratrix, until April, 1838, when the property was sold at auction, under his direction, and with her assent. The amount of the notes was retained by him out of the proceeds of the sale, and the residue of the proceeds was accounted for to the administratrix.

      Ira Harris, for the creditors Rathbone and Smith.

      S. Stevens & O. Meads, for the administratrix.
   The Chancellor.

The personal mortgage to Whitney not being filed till after the death of Alvord, and not being accompanied by an immediate delivery and continued possession of the property, it may be doubtful whether it was sufficient to give Whitney, who was liable to Meads as the last endorser of the note of $1800, a preference in payment over the other creditors of Alvord. This case, however, does not turn upon that question; as I am satisfied that an equitable. lien upon the property was created by the special clause in the power, in reference to the $1800 note and to notes drawn by Alvord and endorsed by Meads. And as thatoinstrument was accompanied by an actual delivery and continued change of possession of the property, until it was converted into money and applied in payment of the two several notes, it was not necessary that the instrument which created that lien should be recorded, under the act of 1833. It is the duty of the court to give such a construction to the language of a written instrument as to carry into effect the intention of the parties, so far as that intention can be collected from the whole instrument and the situation of the parties at the time the writing was executed. And I think no one who reads, this special clause, in connection with the evidence, or rather the admissions, of extrinsic facts which are proper to be taken into consideration, can believe that Alvord did not intend to give to the endorsers of the $1800 note, and to Meads, as the endorser of the Rector note and other notes which he might thereafter endorse, a beneficial interest in the execution of this power, for their security and indemnity. It clearly shows that Alvord anticipated that it would probably be necessary for Meads to incur further responsibility as his endorser, in the discharge of the duties of his agency, and that something more than an ordinary power of attorney was necessary to protect him from loss. And as the possession of j the property was delivered to Meads, in connection with J this power to dispose of it for the security and protection of himself and the other endorsers, the property must be considered as pledged to him for that purpose. The pow-^ ■sr to sell, therefore, was coupled with an interest in the property thus pledged, and survived. (Bergen v. Bennet, 1 Caines’ Cas. in Err. 1. Raymond v. Squire, 11 John. Rep. 53.) In the case decided by the supreme court of the United States, (Hunt v. Rousmanier, 8 Wheat. Rep. 174,) there was no actual pledge of the property. But a mere power of attorney was executed authorizing the plaintiff to transfer it in the name of Rousmanier. It was upon that ground, as I understand the case, that C. J. Marshall held that the power was not coupledo with any interest in the vessels. And I presume his opinion upon that point would have been different if the power had been accompanied by an actual delivery of the vessels as a pledge for the payment of the debt. But even in that case the court protected the rights of Hunt as an equitable mortgagee of the vessels; though the decision was placed on the debate-able ground that a party may be relieved in equity against a mistake of law merely.

Being satisfied that Meads had a lien upon the property in his hands, and a right to retain for the amount of these notes, under the special clause in the written power executed by Alvord, it is not necessary to inquire whether he is not also to be considered as the factor of Alvord ; so as to entitle him to retain for his advances and liabilities, entirely independent of this special provision in the power of attorney to him. If the arrangement between Alvord and Meads gave to the. latter the character of a factor, there can be no doubt as to his lien upon the property in his hands, and his right to retain for all his advances and responsib'ilities in the business with which he was entrusted by his principal. Although it was doubted, previous to the case of Kruger v. Wilcox, (Amb. Rep. 252,) it is now (1 well settled that a factor has a lien and may retain for a v general balance ; including responsibilities incurred in the execution of his agency. (Whit. on Lien, 103. 2 Kent's Com. 640. Story on Agency, 34, § 34.) And the case of ,j Foxcraft v. Wood, (4 Russ. Rep. 487,) was probably decided upon the ground that the arrangement under which the business at Birmingham was carried on constituted Foxcraft the factor of Banning, although he received a fixed salary instead of the usual mercantile commissions for his services. 6

The decision of the master was right in allowing to the administratrix the amount retained by Meads for the two notes. The exceptions are therefore overruled with costs, and the report of the master is confirmed.