text:
    Mandeville, executor, &c. appellant, vs. Mandeville, respondent.

    An executor can be required to give security only when the surrogate is satisfied that his circumstances are such as to render it doubtful whether the property of the testator will be safe in his hands; to be disposed of as directed by the will. The mere fact that he is not possessed of prop, erty of his own, equal in value to that of the estate which the testator has appointed him to administer, is not a sufficient ground for requiring him to give security.
    Where there is no ground for supposing that the trust funds, in the hands of an executor, are in danger from his improvidence, or his want of pecuniary responsibility, he cannot be required to give security.
    August 4.
    This was an appeal from a decision of the surrogate of Cayuga county, requiring the appellant, as the executor of his father’s estate, to give security for the performance of his trust. The testator made his will, in 1836, and thereby authorized and directed his executors, as soon as practicable after his decease, to sell his real estate ; but not to allow a credit on such sale for more than five years, and to rent the property until a sale could be effected. He then directed the proceeds of such sale and of his personal estate, after paying debts, &c. to be distributed among his four sons and four daughters, in the proportions of two shares to each son and one share to each daughter ; and that the avails of the estate should be distributed as often as the executor should have fifty dollars or more on hand. The testator named the appellant, who was one of the sons, and two other persons, as executors. In August, 1839, letters testamentary were granted to the appellant as the sole executor of the will—the two other executors named therein having renounced the trust. The testator’s personal estate, including the amount due for advances to three of his sons and one of his daughters, and which by the terms of the will were- to be. deducted from their several shares, or applied towards the same, was about §5800, after payment of his debts j among which debts was a note of about $1500 due to the son who was appointed executor. And the estimated value of the real estate which the executors were directed to sell was a little less than $6000.
    In December, 1839, the respondent, one of the sons of the testator, presented a petition to the surrogate, stating that the executor was a man of small property, and that his circumstances were such as to afford an inadequate security for his due administration of the estate; and that the moneys to be received by him would be unsafe in his hands. Upon the hearing before the surrogate it appeared, by the proofs, that the executor was worth about $6500 ; including his distributive share of his father’s estate and the note due to him from such estate. The testimony was also such as to satisfy the surrogate that the executor was perfectly honest and upright. And he was not engaged in any hazardous business or speculations ; nor were his circumstances precarious, in the popular sense of the term. The surrogate held, however, that the appellant’s property did not afford such security for the due administration of the estate as would have been taken had he applied for administration in a case of intestacy. He therefore decided and decreed that the circumstances of the appellant were so precarious as not to afford adequate security for the administration of the estate of the deceased ; that he should within five days give a bond with two sufficient sureties, in the penalty of $15,000 ; and that the costs of the proceedings upon the petition should be paid out of the estate. From this decision and decree the executor appealed to the chancellor.

      H. F. Mather, for the appellant.
    N. Beardsley, for the respondent.
   The Chancellor.

I think the surrogate erred in this case, in supposing that the circumstances of the appellant were so precarious as not to afford adequate security for his due administration of the estate of the decedent; according to the true construction of the provision of the revised statutes under which this proceeding was instituted. (2 R. S. 72, § 18.) It certainly could not have been the intention of the legislature, to prohibit the granting of letters testamentary to any executors except such as are possessed of property, of their own, to the full value of the estate which the testator has authorized and appointed them to administer ; or that an executor should be superseded in his trust, or required to find security, whenever his property was reduced below that of the decedent. Such a construction of the statute would render it almost impossible for a man of a large property to select an executor who would be both able and willing to assume the execution of the trust. The obvious meaning of the statute is, that an executor may be required to give security, whenever the surrogate is satisfied that his circumstances are such as to render it doubtful whether the property will be safe in his hands; to be disposed of, or administered, as directed by the will.

Here the testimony shows that the executor is a prudent and discreet man in the management of his own affairs ; that he has a farm of 173 acres, with only an incumbrance of $200 on it; which farmland his other visible property, including his own share of his father’s estate, are nearly equal to the whole amount of the trust fund which can by any possibility come into his hands to be administered,. And he is not engaged in any business which will be likely to endanger the trust fund. He is worth at least $6000, after paying the very small amount of debts which he owes; that is, more than twice the amount of the personal estate which will remain for distribution among his brothers and sisters, after offsetting their debts against their respective shares. Also, by the express directions of the will, the funds are not to remain in his hands for any length of time after they shall have been received by him; as he is required to distribute the same as often as he receives to the amount of $50. And as the real estate will unquestionably be sold upon credit, for a part of the purchase money at least, there is no reason to suppose the executor will ever have in his hands at one time funds of the estate, undistributed, to the amount of $2000. Taking the whole testimony together, I do not think there is the least ground for supposing that the trust fund is in any danger ; either from the improvidence of the executor or from any want of pecuniary responsibility. The case of Wood v. Wood, (4 Paige’s Rep. 299,) was entirely different in this respect. There, the executor had no visible property except a contingent interest in the estate itself ; and the trust, as to the greater portion of the fund, was to continue for a very great length of time. He was also in that case about to remove, with the fund, out of the jurisdiction of the state. But none of those grounds for the interference of the court exist in the present case. I think the surrogate, therefore, instead of requiring the executor to give security, should have dismissed the petition.

For these reasons, the order or decree of the surrogate which is appealed from must be reversed, with costs to be paid by the respondent; and the petition to the surrogate for security must be dismissed. The executor must also be .permitted to retain his costs and expenses of the proceedings before the surrogate, out of the estate in his hands; as a necessary disbursement by him in the discharge of his trust.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Case vs. Towle.
    It is not a matter of course to permit the appellant, in an appeal from a surrogate’s decision, in relation to the capacity of a testator to make a will, to produce additional evidence, not offered, or attempted to be produced before the surrogate ; especially where the evidence is not newly discovered, but is such as the appellant might have produced before the surrogate.
    August 5.
    This was an application, on the part of the appellant, to produce further testimony as to the capacity of the decedent to execute a will.

      W. L. F. Warren, for the appellant.

      J. C. Hart, for the respondent.
   The Chancellor.

. It is not a matter of course to permit the appellant-,in an appeal from a surrogate’s decision, to produce further proof, which was not offered or attempted to be produced before the surrogate ; especially where it is not newly discovered evidence which the appellant could not have produced before the judge a quo. Here the father of the appellant was fully apprised, by the testimony of the physician, that the capacity or incapacity of the decedent was one upon which there was conflicting testimony; and there is no affidavit of any witness who it is now proposed to examine, showing that the decedent was incompetent. And the affidavit of the father of the appellant, who married a sister of the testatrix, does not state that he believes she was so far deprived of reason as to be incapable of making a valid will. There is therefore no sufficient reason shown in this case for allowing new evidence to be given, upon this appeal, which was not offered before the surrogate, nor before the circuit judge on the appeal to him.

The application is therefore denied ; and the respondent’s costs of opposing the application, to be taxed,are to abide the event of the appeal.


author: The Chancellor

text:
    McCarthy vs. Graham and others.
    In a foreclosure suit the court of chancery is authorized to make a contingent decree for the payment of the deficiency, by the mortgagor, upon the coming in and confirmation of the report of the sale, in case it shall appear from such report that the proceeds of the mortgaged premises were not sufficient to pay the debt and costs.
    August 26.
    This was an an appeal from a decree of the vice chancellor of the first circuit; and the only question was whether in a mortgage case the court could make a decree against the mortgagor, for the payment of the deficiency, in anticipation of the master’s report.

      L. H. Sandford, for the appellant.

      W. P. Hawes, for the respondent.
   The Chancellor

decided that the usual decree in such cases, for the payment of the deficiency, upon the confirmation of the report of the sale, in case it should appear from such report that the proceeds of the mortgaged premises were not sufficient to pay the debt and costs, was proper under the provisions of the revised statutes on this subject; and was not erroneous. And that it was not necessary to wait until after the sale of the mortgaged premises before the contingent decree for the payment of such deficiency could be made.


text:
    Gibson & Harris vs. Martin.
    An appeal does not lie to reverse an ex parte order of a vice chancellor which is merely irregular. The proper remedy of the party against whom such ex parte order has been made, is to apply to the vice chancellor to vacate or modify it.
    An ex parte order for the appointment of a receiver ought not to be granted, against a defendant who is not in default for not appearing ; unless in a case of emergency, where the property to which the receivership relates would be likely to perish before the defendant could have notice and be heard on the application for a receiver.
    October 6.
    This was an appeal, by the defendant, from an ex parte order of the vice chancellor of the eighth circuit, referring it to a master to appoint a receiver of the property described in the complainants’ bill in this cause ; and of the rents and profits of the farm also described therein, then or lately occupied by the defendant, and of all the crops growing thereon, or which had been cut therefrom during his occupancy, and then remaining in his possession or under his control unsold; and directing the defendant to permit the receiver to harvest the crops which were then growing on the land, and to deliver to the receiver, and permit him to take possession of, all the property mentioned in the bill of complaint, and to hold the same subject to the further order of the court. The order purported to have been made upon reading an affidavit merely 5 and there was no evidence that the bill was before the vice chancellor, or that the contents of it were known to him at the time he made the order appealed from. The appellant’s counsel therefore insisted that the bill could not be read or used upon the hearing of the appeal. It was only read de bene esse, in case the respondents’ counsel should procure the certificate of the clerk or vice chancellor that it was read or used in the court below upon the motion 5' and no such certificate was produced.

      C. Stevens, for the appellant.

      J. V. L. Pruyn, for the respondents.
   The Chancellor.

The hill, upon which the injunction in this case was granted, being excluded from consideration on this appeal, it is difficult to ascertain precisely to what property the receivership relates ; or how far the order affects any interests claimed by the defendant, so as to authorize him to appeal if such an order was the proper-subject of appeal. I think, however, the defendant has mistaken his remedy in supposing that an ex parte order that is merely irregular, and which, therefore, would be set aside or modified as a matter of course upon a proper application to the same court, can be appealed from. Such a practice would compel the appellate court to correct all the irregularities of the proceedings in the court below, at great expense to the parties. Although the language of the statute relative to appeals from orders made by vice chancellors is general, it never could have been the intention of the legislature to authorize an appeal from such an order ; instead of applying to the court below to set aside the order for irregularity. If the vice chancellor, upon a proper application, should refuse to set aside or modify such an order, his decision denying the application would form a proper subject of appeal,, and would be corrected by this court.

The order in question was clearly irregular, in the form in which it was entered, whether it was founded upon the affidavit alone, or upon the affidavit in connection with the facts stated in the bill. It appeared that the subpeena was served on the defendant on the 31st of July, only four days before the application. He was, therefore, neither proceeded against as an absentee, nor was he in default for not appearing; so as to entitle the complainants to proceed without notice, except in a case of emergency, where the property would be likely to be destroyed before the defendant could have notice and be heard upon the application. (Sandford v. Sinclair, ante, p. 373.) That was not the case as to the property generally to which this receivership relates, though as to the wheat which had been cut and not secured, and as to that which was then ready to cut, it would have been proper, on the affidavit presented, to have appointed a temporary receiver to secure it from loss ; or to have granted an order to show cause immediately, before the vice chancellor, why a receiver should not be appointed.

The effect of the order which was made, however, was to deprive the defendant of the possession of the farm, and of all the crops which were then growing, or which had at any other time been raised thereon by him, without giving him a chance to be heard. It would therefore be improper either to affirm or reverse this order on the appeal. But the appeal must be dismissed, with leave to the defendant to apply to the vice chancellor, upon due notice to the adverse party, to set aside the order appealed from, for irregularity, or to modify it; so far as it affects the rights and interests of the defendant, and as may appear to the vice chancellor to be proper, upon the hearing of both parties before him. And under the circumstances of this case I shall not charge either party with costs upon this appeal.


text:
    Maurice vs. Graham.
    Where the testator, subsequent to the adoption of the revised statutes, devised a house and lot to J. &E. and their heirs and assigns forever, provided they both attained the age of twenty-one, and to the survivor if only one of them attained that ago, and further directed that if they both died leaving no child or children, the house and lot should go to L. and her heirs and assigns forever; Held, that J. & E. took determinable estates in fee in their respective moieties of the house and lot, subject to he divested in favor of the survivor if either died under age, and subject to be determined in favor of L in caso J. & E. should both die without, leaving issue, before or after they attained the age of twenty-one. Held further, that such contingent limitations over of the house and lot were both valid, under the provisions of the revised statutes.'

      October 6.
    This suit was brought to foreclose a mortgage given by the defendant F. P. Graham, to the complainant, upon the house and lot No. 371, Broadway, in the city of New-York. And this was an application on the part of the complainant to compel J. Titus Johnson, the purchaser of the premises at the master’s sale, to complete his purchase. The premises were sold for a perfect title ; subject, however, to a lease thereof for a term of years, at an annual rent of $400. Upon investigating the title the purchaser insisted, that under the will of W. Turpin, the former owner of the premises, the mortgagor had not a perfect title to the rent and reversion.
    Turpin died in 1835, seized of the premises, subject to the lease which he had previously executed. And by his will, made a short time before his death, he devised the premises as follows : "I give and bequeath to Juda Jackson, my freed colored girl, and equally to her brother Edward Butler, and to their heirs and assigns forever, provided they both live to the age of twenty-one years, or to the survivor if only one should live to attain that age, all that lot” &c. (describing the premises.) " If Juda and Edward both die leaving no child or children, in that case I leave and give the whole of this lot to my freed black woman Lucy Bates, her heirs and assigns forever. I appoint Charles Collins and his son George B. Collins, guardians to Juda Jackson and Edward Butler, with full power to demand and receive the rent of the said lot; and after deducting five per cent for their commissions, they shall, during the life of Lucy, pay to her, the said Lucy Bates, one hundred dollars a year, to be paid to her quarterly. The whole balance of the rent shall, every quarter, be paid to Juda Jackson, to be by her applied to her own support and the support of her brother Edward.” Juda Jackson attained the age of twenty-one in May, 1836, and about two years thereafter intermarried with the defendant F. P. Graham, the mortgagor. In November, 1838, she joined with her husband in a conveyance of all her interest in the premises to a third person, who the next day reconveyed the same to Graham, the husband. Edward Butler became of age in December, 1837; and in July, 1839, he conveyed all his interest in the premises to his sister Juda, the wife of Graham. She died in September thereafter, without issue, leaving her mother, Mary Turpin, and her brother, Edward Butler, her only heirs at law. And they conveyed all their interest in the premises to F. P. Graham, who afterwards mortgaged the whole premises to the complainant.
    J. Maurice, jun. for the complainant.
    J. Titus Johnson, the purchaser, in person.
   The Chancellor.

The question which arises upon this application is, what interest or title passed to the devisees of W. Turpin, under his will; and whether the purchaser at the master’s sale will, under the master’s deed, obtain an absolute and indefeasible title to the premises, subject only to the incumbrance and conditions of the lease executed by Turpin before his death. The will is very inartificially drawn, and it is difficult, therefore, to say precisely what the testator intended by some of its provisions ; though I think his general intention is very obvious, unless there is something in other parts of the will, which are not before me on this application, that might lead to a different construction. The will was made in April, 1833, at which time Juda was about eighteen years of age, and her brother Edward was sixteen. The testator appears to have contemplated two events, upon the happening of which the devise in fee to Juda and Edward, as tenants in common, was to be defeated, either wholly or in part: First, the death of one of them before both had arrived at the age of twenty-one; and in that event the estate, which is devised to both as tenants in common provided they should both arrive at the age of twenty-one, is given to the survivor. Secondly, the death of both without children, either before or after they arrived at the age of twenty-one; in which event he devises the whole lot to Lucy Bates, and "her heirs, in fee. It does not appear, nor is it material to the decision of this case, whether Lucy Bates is still living. For if the limitation over to her and her heirs, was ever valid, the whole estate of the mortgagor, which he has derived under Juda and Edward, is liable to be divested by the death of Edward without issue living at the time of his death ; his sister Juda having already died childless.

I can see no objection whatever to the validity of this devise over, to Lucy Bates in fee, upon the happening of the contingency contemplated by the testator. It is the ordinary case of an executory devise, of the whole property in fee simple, limited upon a determinable estate in fee ; in the event of the death of the first takers without leaving children. Even if the word children, in this devise, should be construed to mean issue, so as to include more remote descendants, still it would not mean an indefinite failure of issues; o as to give an estate tail to the first takers. For the revised statutes declare that a limitation over, upon the death of the first taker without issue, shall be construed to mean without issue living at the time of his death. (1 R. S. 724, § 22.) This remainder to Lucy Bates is so limited that it must vest in possession, as well as in interest, at the termination of two lives in being at the death of the testator, if it ever vests ; to wit, upon the death of Juda and Edward, without children living at the time of their respective deaths. It could not, therefore, in any event, suspend the power of alienation for longer than two lives; even if this remainder in fee was not vested in interest, so as to be alienable during the lives of Juda and Edward. If these several estates and interests of Juda, and Edward and Lucy, are to be considered as legal estates, entirely separate and distinct from the direction to the persons named as guardians to receive and apply the rents and profits of the premises, the purchaser at the master’s sale will not obtain a good title to the whole premises. For he will have to take the title subject to the contingency of its being divested, in favor of Lucy Bates or her heirs, in case of the death of Edward without leaving issue at the time of his death. And if it should be held that the legal title to the whole premises was intended to be given to the persons named as guardians, during the lives of the three persons beneficially interested in the rents and profits, that would be still more fatal to the title of the purchaser. For it might render the whole devise void, as a suspension of the power of alienation for more than two lives in being ; according to the decision of the court for the correction of errors in the case of Lorillard’s will. Or, at least, it would render the estates or interests of the several persons beneficially interested in the rents and profits inalienable, during the continuance of the trust, under the provisions of the sixty-third section of the article of the revised statutes relative to uses and trusts. (1 R. S. 730.)

The conclusion, however, at which I have arrived, is that the testator only intended to give to the persons whom he calls guardians, the ordinary power of guardians while Juda and Edward were minors and incapable of attending to their own rights ; and that he did not intend to vest the legal title, to any part of the estate, in such guardians as trustees. He does indeed direct them to pay the annuity of $100 to Lucy Bates during her life. That, however, was only an incorrect method of expressing his intention that she should receive an annuity out of the estate, to that amount, during her life; and that while the guardians continued to receive the rents of the premises they should pay that annuity to her, and should pay over the residue to Juda for the support of herself and her brother. It is very clear that the testator intended that Lucy Bates should receive an annuity for life out of the rents and profits of the premises. And that appears to be a valid charge upon the premises, which a court of equity would enforce. Whether that interest was or was not inalienable under the provisions of the section of the revised statutes last referred to, is a question not necessary to be decided here. But if I am right, in supposing that it was not the intention of the testator to vest the legal title in the persons named as guardians, then it is a mere charge upon the rents and profits of the land, which is alienable ; and not an interest in a trust for the receipt of rents and profits, which interest cannot be sold by the cestui que trust.

The estate of the mortgagor in the premises being incumbered "with this annuity, if Lucy is still living, and the presumption is that she is alive in the absence of any allegation to the contrary, that of itself would he a sufficient answer to this application. The motion of the complainant must therefore be denied, with costs, and the purchaser must be discharged from his purchase. And the premises may be re-sold by the master, subject to such claims as may exist thereon in favor of Lucy Bates for her annuity ; or in favor of her and her heirs, as devisee of the remainder in fee, in case Edward Butler should die without leaving issue surviving him.

Order accordingly.


text:
    Brinckerhoof and others vs. Remsen & Brinckerhoof.
    Where the instrument propounded as a will was wholly in the hand writing of a third person, and was executed by the decedent merely by signing it and acknowledging it to be her hand and seal in the presence of the subscribing witnesses, and the instrument was not read, nor was any thing said at the time from which the witnesses understood it to be a will; Held, that it was not duly executed and published by the testatrix, so as to make it a valid will, under the provisions of the revised statutes; although the attestation clause, which was not read by or in the hearing of the witnesses, stated the will to have been duly published in the presence of such witnesses.
    The revised statutes having provided, that the testator, at the time of signing or acknowledging his will in the presence of each of the witnesses thereto, shall declare the instrument so subscribed to be his last will and lestament, there must be an actual publication of the instrument, as a will, in the presence of the subscribing witnesses; in addition to the other formalities required by the statute.
    No particular form of words is necessary to be used by the testator in declaring the instrument signed by him to be his will, if he actually communicates to the attesting witnesses the information, that he knows and understands the nature of the instrument he is executing, and intends distinctly to recognize it as his will.
    But to render a will valid, under the provisions of the revised statutes, the subscribing witnesses thereto must, at the time of its execution, know it to be a will; and must also know that the testator understands it to be and means to execute it as a will.
    Where the attestation clause is in the usual form, stating the will to have been executed and published by the testator as his last will and testament, in the presence of the witnesses, specifying that all the requisite formalities were complied with, if such attestation clause is read over in the presence and hearing of the testator and lhe witnesses and understood by him and them, a request from the testator that they will subscribe the same as witnesses to liis execution thereof, will of itself be a sufficient publication of the instrument as his last will and testament.
    And where the subscribing witnesses to a will have subscribed their names as witnesses at the end of an attestation clause, showing that all the formalities requisite to a valid execution of the will were complied with, the mere inability of the witnesses to recoiled that the testator published the instrument as Ills will, is not sufficient to in validate the same, unless the witnesses recollect that he did not declare it to be his will, and that the attestation clause was not read and understood at the time of the execution of the instrument.
    So in the case of the death of the subscribing witnesses to a will, their signatures, at the end of an attestation clause stating, in the usual form, that all the formalities required by law were complied with, would, when duly proved, bo sufficient evidence that the will was executed and published by the testator in duo form.
    October 6.
    This was an appeal to the chancellor from the decision and decree of the circuit judge of the first circuit, affirming a sentence or decree of the surrogate of the city and county of New-York, admitting the will, or instrument propounded by the respondents as the last will and testament of Dorothea Brinckerhoof deceased, to probate as a valid will. The instrument propounded purported to have been executed by the testatrix in February, 1834, and was witnessed by H. Clark and B, W, Murphy, by subscribing their names, with the addition of their places of residence at the foot of an attestation clause at the end of the will. The attestation clause was as follows : “ The writing contained on this one sheet of paper was on the day of the date thereof subscribed at the end thereof and sealed, by the above named Dorothea Brinckerhoof, in the presence of each of us ; and she at the same time acknowledged to each of us that she subscribed the said writing and declared it to be her last will and testament. And at her request we have hereunto respectively subscribed cur names as witnesses in her presence, and in the presence of each other ; and we have each of us written opposite to our names, our respective places of residence.”
    The testatrix, at the date of the will, was in her eighty-fifth year. And the will was wholly in the hand writing of her daughter, Jane Brinckerhoof, one of the executrixes ; except the signature of the testatrix, and the names of the witnesses and their places of residence. The proof of the execution was in substance as follows : H. Clark testified that he was a clerk in the store of Mr. Shermerhorn, the son in law of the testatrix, and attended at his request as a witness ; that the testatrix executed the instrument propounded as a will, in his presence, by writing her name and acknowledging it “ to be her hand and seal for the purposes therein mentioned that the will was not read to her, nor did the witness read it, except the last line of the attestation clause ; that he subscribed his name to the instrument as a witness, in the presence of the testatrix ; but he did not ask her if it was her will, nor did she say it was ; nor did any person who was present say it was a will. B. W. Murphy, the other subscribing witness, testified that H. Clark requested him to go with him to witness an instrument, and was present with him at the execution of the instrument propounded, and subscribed it as a witness, at the request of the testatrix ; that he saw her sign it, and she acknowdedged it to be her signature, for the uses and purposes therein mentioned ; that she did not say it was her will, nor did he understand from any one present that it was a will; that there were two other ladies present, but he never saw the testatrix or either of those ladies before ; that after he had written his name as a subscribing witness, the testatrix discovered that he had omitted to write his place of residence, and requested that it should be done.

      S. Stevens & G. Brinckerhoff, for the appellants.

      G. Griffin & D. Lord, jun. for the respondents.
   The Chancellor.

This case presents a new and very important question in relation to the execution and proof of wills under the provisions of the revised statutes. Our former statute on this subject was in substance the same as the 29 Charles 2d, chap. 3, § 5. It declared that every will of lands should be in writing and signed by the party making the same, or by some other person in his presence and by his express direction 5 and should be attested and subscribed, in the presence of such party, by three or more credible witnesses. (1 R. L. of 1813, p. 364, § 2.) As the statute of Charles contained no express provision upon the subject of the publication of the will by the testator, the question arose under that statute, whether it was necessary that there should be any publication of the will in the presence of the subscribing witnesses, or whether it was not sufficient if it appeared from other evidence that the instrument, signed by the testator and the witnesses as directed by the statute, was intended by the testator as a will. This question does not appear to have been definitively settled, in England, in 1826, when the 3d edition of Mr. Roberts’ valuable treatise on the law of wills was published. After referring to some of the cases on the subject, that author says, “ the point therefore, seems subject to some doubt whether publication is to be considered as a mere vague term, expressing generally the act of authenticating and announcing the veritable will of a testator, but depending as to the mode by which it is to be effectuated on the particular ceremonies and solemnities prescribed by the legislature, or as implying a specific obligation on the testator, beyond the execution and attestation of the will according to the statute of frauds.” (1 Rob. on Wills, 3d Lond. ed. 101.) His opinion evidently was, that under the statute of Charles 2d, no positive declaration of the testator, in the presence of the witnesses, that it was his will, was requisite in order to make it valid. He says, however, if any such positive declaration be necessary to constitute a sufficient publication, since that statute, “ it does not seem that the mere acknowledgment of the signing can operate as an equivalent; for the acknowledgment of the signing, unless the testator at the same time acknowledge his will, can not be more extensive in effect than the act of signing in the presence of the witnesses.’’ (Idem, 102.)

The first reported case Which has a bearing on this question, is that of Peate v. Ougley, in 1710, (Comyn’s Rep. 197,) upon the will, of rather upon the question of the due execution of a codicil to the will, of the Earl of Bolingbroke * Which codicil was executed in 1679, the next year after the passing Of the statute 29 Charles 2d. The will itself was dated about ten years previous, and was signed and sealed by the testator. The codicil was written immemediately below', and was also signed and sealed by him, and covered the whole of that part of the paper * so that there was not room to add the attestation clause and the names of the Witnesses* below the testator’s signature to the codicil. But at the top of the will there was an attestation clause in the following words, to which the names of the three witnesses were subscribed subsequently to the date of the codicil : “ signed, sealed, and published as my last will and testament in the presence of* the same being written here for want of room below.” Upon the trial of the cause before Trevor,,C. J. the only surviving witness identified the instrument as the one he and the other subscribing witnesses had signed, at the request of the testator * and he proved that the will and codicil and the attestation clause were all in the deceased earl’s hand writing. He also swore that he and the other two witnesses were called up in the night, and sent for into the testator’s room, who produced a paper folded up, and requested them to set their hands to it as witnesses * which they did in his presence. But they did not see any of the writing, nor did he tell them it was his will, or say what it was. It was, among other things, objected, by the counsel for the defendant, that the codicil .was not duly executed according to the statute, as the testator did not declare it to be his will, in the presence of the witnesses. His lordship, however, instructed the jury that there- was sufficient evidence to authorise them to find the codicil duly executed * and they found accordingly.

It will be seen By the statement of the case of Peate v. Ougley, that no question could arise as to the knowledge of the testator that the instruments, to which he had subscribed his name, were a Will and codicil, and that he intended them to operate as such ; as the whole had been drawn by himself, and the instruments on their face clearly showed that they were intended as testamentary papers dulys The point of the decision, therefore, merely was that it was hot necessary, to constitute a valid execution of the will within the Statute, that the subscribing witnesses should know, from any act or declaration of the testator at the time they were called as Witnesses, that the instrument which he was executing was intended as a will, or that he was aware of its contents ; but that those facts might be established by other evidence.

In the case of Ross v. Ewer, in 1744, (3 Atk. Rep. 161,) Lord Hardwick expressed the opinion that the publication was an essential part of the execution of a will; and that the mere declaration of the testator in the instrument itself that it was his will, was not a sufficient publication. And he deferred to Mr. Windhairi’s case, upon a trial at bar in the court of king’s bench, where he said it was held that a publication Was necessary, although the testator executed it in the presence of three witnesses, who attested it in his presence. The particular circumstances of that case are not stated. Nor does it appear whether the instrument given in evidence in Windham’s case was in the testator’s hand writing, or was ever read by him to show that he knew at the time he signed it what its contents were, or that he intended it as a Will at the time he so signed it. In that respect it was somewhat analogous to the case now under consideration ; except so far as the fact that the testatrix, in this case, directed one of the witnesses to add his place of residence to his signature, may be considered as evidence that she knew it was a will which she was executing. The case in which the remark of Lord Hardwick was made, did not call for the expression of an opinion upon the question, whether the publication of a will must be marie by the testator in the presence and hearing cf the witnesses who attested the instrument, under the statute of Charles 2d. For he was speaking in reference to a paper found in the closet of the decedent, immediately after she died, but which was neither in the ordinary form of a will, nor signed by her or any one else ; though it was proved to be in her hand writing, and was headed thus : “ I declare this my will.” That his lordship did not, in that case, intend to decide that the publication of a will, in order to make it valid under the statute, must be actually made to the subscribing witnesses to such will, is evident, however, from the fact that in 1751, in another case, he cited with approbation, the case of Trimmer v. Jackson, which he said was decided in the court of king’s bench, the year before, upon a case sent there by the court of chancery ; where he then presided as lord chancellor. (See Rigden v. Vallier, 3 Atk. 735, and 2 Ves. sen. 258.)

Although there is no regular report of this case of Trimmer v. Jackson, the case itself was subsequently recognized by Mr. Justice Denison ; who must have been a judge of the court of king’s bench at the time it was said to have been decided. For he was appointed in 1741, and remained in that court twenty-three years. (See Gent. Mag. for 1742, p. 274; Burr. Set. Ca. 177, 531.) It is thus stated by Dr. Burn, in his very valuable treatise on the Ecclesiastical law of England : “ The case of Trimmer v. Jackson was where the witnesses were deceived by the testator at the time of the execution, and were led to believe, from the words used by the testator at the execution of the instrument, that it was a deed and not a will. It was delivered as his act and deed ; and the words sealed and delivered were put above the place where the witnesses were to subscribe their names. And it was adjudged by the court, as it is said, for the inconveniences that might arise in families from having it -known that a person had made his will, that this was a sufficient execution. (4 Burn’s Eccl. Law, 8 Lond. ed. by Tyrwhitt, 130.) Whether the will was in the hand writing of the testator, or there was any evidence of his having recognized it as his will at any other time, does not appear. But the case is a direct authority to the point that it was not necessary, under the statute of Charles 2d, that there should be any distinct recognition by the testator, in ike presence cf the subscribing witnesses, that the instrument executed by him, and subscribed by them, was intended to have a testamentary character ; or that those witnesses should know or suppose it to be a will.

The case of Wallis v. Wallis, tried before Mr. Justice Deniston in 1762, (4 Burn’s Eccl. Law, 127,) although but a nisi prius decision, was fully argued at the assizes; and is an authority to the point that a publication in the presence of the subscribing witnesses was not necessary. It, however, distinctly appeared in that case, from the will itself, that the testator knew the instrument, executed by him in their presence and subscribed by them, was a will. For it was in his own hand writing, and contained the usual attestation clause, purporting that the instrument was signed, sealed, and published as his last will and testament, in the presence of, &c. And the testator himself pointed out to the witnesses the place where they were to write their names; which names were afterwards found to be written at the end of this attestation clause.

The more recent case of White v. The Trustees cf the British Museum, which came before the court of common pleas in 1829, (6 Bing. Rep. 310,) was substantially the same as that of Wallis v. Wallis, and was decided in the same way, upon the point now under consideration ; although other questions arose in that case. It was found by the special verdict that the attestation clause “ In the presence of us, witnesses thereto,” was in the hand writing of the testator himself; who told one of the subscribing witnesses, at the time he requested him to attest it, that it was his will. But the jury found that the other witnesses, who signed it at a different time, at the request of the testator, were not informed by him when they so signed it as witnesses, or at any other time, that it was his will. The fact that the testator himself knew the nature of the instrument he executed, and intended it for his will, was, therefore, fully established; although that fact was not made known to two of the subscribing witnesses.

The case of Wright v. Wright, (5 Moore & Payne’s Rep. 316,) which came before the same court the follo'wing year, upon an issue out of chancery, upon a similar state of facts, was decided the same way. And a similar decision was made in the case of Ray and others v. Walton, in 1819, in the court of appeals of our sister state of Kentucky. (2 A. K. Marsh. Rep. 71.) One of the witnesses in that case, however, testified that after the testator had signed the instrument, he requested the witnesses to attest it; accompanying such request with the remark that he believed the law required that a will should be attested by three witnesses. Upon that ground the court held that if an express publication was required, it was sufficiently proved by the testimony of that witness ; although the two other subscribing witnesses had no recollection of this remark made by the testator. But Judge Rowan, who delivered the opinion of the court, further held, that the publication of his will by the testator, about which there was much confusion in the British opinions, was to be found in and declared from his observance of those forms and solemnities required by the statute; that every solemnity required by the statute, implied publicity, and the concurrence of them all conferred and completed the requisite publication ; that when a man wrote and signed his will with his own hand, he thereby published it; and that the will of Gen. Walton, being written and subscribed wholly by himself, must have been considered by the court as duly published, independent of the other facts in the case,

In none of these cases has the court gone so far as to say that a will was valid where it was not written by the testator himself, and was not published as a will at the time of the execution thereof; unless there was some other evidence, beyond the mere signing of the instrument in the presence of the witnesses, and requesting them to attest it, to show that the testator knew the instrument so signed by him to be a will, and that he intended it as such ; or that he knew the contents thereof. Indeed, the decision of the supreme court of Massachusetts in Sweet v. Boardman, (1 Mass. Rep. 258,) is a direct authority to show that the mere signing of such a will in the presence of witnesses, and requesting them to attest the execution of the instrument, without letting them know that the testator himself was aware of the character of the paper he thus executed, is not of itself a sufficient publication of the will.

This question is put at rest in England, as to all future wills, by the act of the 3d of July, 1837. (1 Vict. ch. 26.) The ninth section of that act declares, that no will shall be valid unless it is in writing and executed in the manner therein mentioned ; that is to say, “ it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” And the 13th section of the act declares that every will thus executed shall be valid without any other publication thereof. (See Supp. to Rob. on Wills, 37, 112, 113.)

The legislature of this state, however, in the recent revision of the laws, appears to have intended to put the question at rest directly the other way. The former statutes of wills, it will be recollected, prescribed certain formalities to be observed in relation to wills of real estate ; but said nothing as to the publication of the will, by the testator, in the presence of the witnesses, or otherwise. The question, therefore, arose whether the adoption of the formalities required by the statute dispensed with the necessity of the publication of the will, which was necessary previous to the statute ; and if not, whether it was necessary that such publication should be made by the testator in the presence of the three witnesses who attested the will. The recent English statute dispenses with the publication altogether ; except so far as a compliance with the express directions of the statute is in itself a publication. Our revised statutes, on the contrary, after requiring the subscription of the testator to the will to be made by him in the presence of each of the attesting witnesses, or to be acknowledged by him to each witness to have been so made, provides in express terms, that the testator at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. (2 R. S. 63, § 40, sub. 3.)

When we look at the explicit language of this provision, in reference to the doubts which once existed whether under the statute of Charles 2d an actual publication in the presence of the attesting witnesses was not necessary to the due execution of the will, in connection with the fact that the legislature intentionally altered the language of this section from that of the old statute, which was retained substantially in the section as originally reported by the revisors, I cannot entertain a doubt that the law makers intended to require an actual publication of the instrument as a will, in the presence of the subscribing witnesses, at the time of its execution, in addition to the other formalities required by the statute.

Whether it was wise to require a formality of this kind, resting in the recollection of the witnesses merely, where the instrument upon its face purported to be a will, and thereby exposing the intention of the testator to be defeated, by the imperfect or mistaken recollection of the witnesses that the testator at the time he signed the instrument did not declare it to be his last will and testament, is a question which it does not properly belong to the courts to decide. And if the fact distinctly and satisfactorily appears, as it does in this case, that the testator did not declare to the subscribing witnesses, or in their presence, that the instrument signed by him and attested by them was a will, it is the duty of the court to carry into effect the expressed will of the law givers; by declaring that such an instrument is invalid as a testamentary disposition of the decedent’s property.

No particular form of words, however, is necessnry, even under this statutory provision, to communicate the information from the testator, to the attesting witnesses, that he knows and understands the nature of the instrument he is executing, and that he intends distinctly to recognize it as his will. I think, therefore, there can be no reasonable doubt that if this will and this attestation clause, or even the attestation clause alone, had been read over in the presence and hearing of the testatrix, so that the witnesses could be fully satisfied that she knew and understood its meaning, her request to them to attest it as witnesses, would have been such a recognition of the instrument as her will as to make it a good execution thereof, according to the spirit and intent of the statute. So also where the witnesses have signed their names to such an attestation clause, the mere inability of the witnesses to recollect whether the requirements of the statute had or had not been complied with, probably would not be sufficient to invalidate the will; unless it appeared that they signed their names to the attestation clause without hearing it read or knowing what was contained therein. It is certain that if the witnesses were dead, proof of their hand writing, and of the hand writing of the testatrix, would have been sufficient evidence that all the formalities required by the statute had been complied with ; unless the fact was disproved by other evidence. (See 3 Robinson’s Virg. Prac. 370, and the cases there referred to; and Scribner v. Crane, 2 Paige’s Rep. 149.)

In the present case, both the subscribing witnesses expressly disprove the fact that this provision of the revised statutes as to publication was complied with; notwithstanding the statement to the contrary in the attestation clause, to which they subscribed their names. Clark swears that the will was not read to the testatrix, nor did he read it; except the last dine of the attestation clause, which of course gave him no information that the instrument he was witnessing was a will. And that he did not ask her if it was her will; nor did she or any one present say it was a will. The other witness swears substantially to the same thing. So far from declaring to the witnesses that it was her will, the only circumstance from which it can be inferred that she herself knew the nature of the instrument she was signing, is, that she requested one of the witnesses to add the place of his residence after his name. But the witness does not say that this conveyed any information to his mind that the instrument he was witnessing was a will. And the intimation to the testatrix that the place of the witnesses’ residence should be stated, may have come from Jane Brinckerhoof, one of the respondents, who was present; and who drew the will with this attestation clause, stating among other things that the witnesses had written their respective places of residence opposite their names. Or it might have been made to her by the other witness, who says he read this line of the attestation clause ; and who had been informed, by the person who sent him there, that the instrument he was sent to witness was probably a will.

Independent of this proof that there was in fact no publication of the instrument, by the testatrix, as her will, in the presence of these witnesses, to enable them clearly to understand from her that they were attesting her will, the circumstances under which the will was executed are calculated to throw suspicion upon the whole transaction. The will is made by an aged lady who had lived far beyond the ordinary period of human life; and there is no evidence that she ever read the will or heard it read. It was in the hand writing of one of her daughters, who took a much greater interest in the estate under the will than she would have done in the case of an intestacy. And although another of the testatrix’s children, who was examined as a witness before the surrogate, swears he was requested by her to procure a will to be drawn, about a year previous to the time this one was made, he admits this is not an exact copy of that draft; without producing the draft or even explaining in what the difference consisted. The testatrix also appears to have had a large family, and probably must have had very many respectable acquaintances in the city of New-York ; and yet one of the witnesses, sent by her son-in-law to attest the execution of the will, was an entire stranger to her and to her family. For he swears he never saw either the testatrix or the other ladies, who were present, until the time he was called upon to witness the will. He stayed in the house ten or fifteen minutes, and probably never saw her afterwards. He, therefore, appears to have been a very improper if not an incompetent witness to her will; for he could not know, except from the information of others, that she was the individual whose will the instrument to which he subscribed his name purported to be. Under such circumstances, and upon an acquaintance of ten or fifteen minutes, he is called upon not only to witness the formal execution of the will itself, but to prepare himself to testify to the identity and mental capacity of this old lady; who he says, from the manner in which she was spoken to by others, he supposed to be somewhat deaf.

Cases of emergency may, and frequently do occur, in which it becomes necessary to resort to witnesses, to attest the execution of wills, who are to a great extent strangers to the persons whose wills they are called upon to witness. But as the signature of the witness, in case of his death or absence, is prima facie evidence that he knew the testator named and described in the will to be the person who executed the same, and that such testator was of sound and disposing mind and memory, as well as that all the formalities required by law in the execution of the will were complied with, no one is justified in putting his name to a will as a witness until he has fully satisfied himself of the identity of the testator, and of his capacity to make a will. Neither should the witness set his name to an. attestation clause, certifying that the testator declared in his presence that the instrument thus witnessed was his last will and testament, when in truth no such declaration was made; and when the witness could not know, from any thing that transpired at the time, whether the testator supposed he was executing a will or some other instrument,

The conclusion at which I have arrived in this case, from the testimony before the surrogate, is that the instrument propounded as the will of Dorothea Brinckerhoof, was not executed with the formalities required by the revised statutes, to make it a valid will. The sentence or decree appealed from must, therefore be reversed ; and a decree must be entered, declaring the invalidity of the instrument propounded as a will, and that the decedent died intestate. Costs are to be allowed to the appellants, both in this court and in the courts below ; to be paid out of the estate. And the proceedings are to be remitted to the surrogate of the city and county of New-York, to the end that administration may be granted as in cases of intestacy.

Sentence and decree accordingly,

       As to the necessity of a strict compliance with the forms required by statute in the execution of wills of personal estate as well as of lands, see 1 Curteis’ Ecclesiastical Reports, 914; George v. Rielly, 2 Idem, 1; Anichini v. Anichini, Idem, 210; the case of the will of Ann Rawlins, Idem, 326; and the case of Howell’s will, Idem, 342. And as to wills drawn for aged persons, or persons of feeble intellect, without previous instructions from them, see Billinghurst v. Vickers, 1 Phill. Rep. 187; Paske v. Ollatt, 2 Idem, 323; Ingram v. Wyatt, 1 Hagg. Eccl. Rep. 384; Baker v. Bait, 1 Curteis’ Rep. 125; Sankey v. Lilley & The King’s Proctor, Idem, 402; Barry v. Butlin, Idem, 638; and Durling & Parker v. Loveland, 2 Idem, 225.


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    Jennings vs. Webster.
    In a suit to foreclose a mortgage, the defendant cannot set off an unliquidated demand not connected with the mortgage debt, and which is not a proper subject of set-off at law ; unless there is some peculiar equity in the case, to take it out of the general rule that unliquidated demands cannot be set off.
    An allegation that the party, against whom a set-off in equity is claimed, has parted with some of his property and threatens to put the residue out of his hands, is not equivalent to a charge of insolvency; and is not sufficient to entitle the party making such allegation to offset a demand, in the court of chancery, which is not a proper subject of set-off at law.
    Where the defendant in a suit in chancery is entitled to set off a debt due to himself, against the debt claimed by the complainant in his bill, he may state the facts in his answer, and claim the right of set-off, without filing a cross-bill.
    A cross-bill is not necessary, or proper, to obtain a set-off against the debt claimed by the original bill, unless it appears by the cross-bill that a discovery is necessary to enable the defendant in the original suit to avail himself of that defence; or that, for some other reason, he could not have availed himself of the set-off by plea or answer to the original bill.
    Under the provisions of the revised statutes relative to set-off in equity, if the defendant claims a set-off by his answer, and a balance is found in his favor, the court may decree the payment of such balance, by the complainant.
    This was an appeal from a decree of the former vice chancellor of the eighth circuit, the Hon. Addison Gardner, allowing a demurrer to the complainant’s cross-bill; and dismissing such bill with costs. Webster filed a bill against Jennings for the purpose of foreclosing and obtaining satisfaction of a bond and mortgage, given to the former by the latter in 1835. Jennings thereupon filed his bill in this cause, in the nature of a cross-bill, for the purpose of obtaining a decree to set off, against the monies due on the bond and mortgage, the damages sustained by the breach of an agreement, made by Webster with D. Stone, in 1825, to keep in repair a certain dam ; for the convenience and benefit of the clothing works and carding machine of Stone. The cross-bill alleged, that in 1835 the complainant Jennings and another person purchased the clothing works and other machinery of Stone, who assigned to them all his interest in the agreement; and such other person subsequently assigned all his interest in such agreement to the complainant. The bill, after stating several breaches of the agreement, both before and after the purchase from Stone, and the filing of the bill to foreclose the mortgage, prayed an account of the damages sustained by the breaches of the agreement, and that the same might- be offset against the amount due on the bond and mortgage ; and for a decree against Webster for the balance, if any should be found due.

      Vincent Matthews, for the appellant.

      Ashley Sampson, for the respondent.
   The Chancellor.

The demurrer in this case proceeds upon the ground that the complainant has a remedy at law to recover his damages, if he is entitled to any, for the breaches of 'the alleged agreement; and that he has no equity to set off unliquidated damages, arising from such an agreement, against the amount due on the bond and mortgage to Webster ; and also upon the further ground that if an offset was allowable in such a case, it was sufficient to set up that defence in the answer to the original bill.

The demurrer appears to be .well taken upon both of these grounds. The claim of the complainant Jennings, independent of the question of set-off, appears to be-a mere claim for unliquidated damages, for an alleged breach of the agreement, with Stone, to make all necessary repairs upon the dam, for the benefit of the mills and machinery of both. There is not sufficient stated in the bill to show that the agreement was under seal, and was a charge upon the mills which were owned by Webster at the time such agreement was made. Neither does that fact appear to be material in this case ; as Webster might still be personally liable to Stone or his assignee upon his covenant, even if it was a covenant running with the premises or mills then owned by him, and was duly recorded so as to make it a binding charge upon those mills in the hands of the subsequent purchasers thereof. (Mills v. Auriol, 1 Hen. Black. Rep. 433; 4 Tenn. Rep. 94, S. C. Fisher v. Ameers, 1 Brownl. Rep. 20. Bachelor v. Gage, Cro. Car. 188. Barnard v. Gods call, Jac. 308.)

It is perfectly clear, however, that an unliquidated demand, in no way connected with the mortgage debt for the recovery and satisfaction of which a bill of foreclosure is filed in this court, which demand is not a proper subject of offset at law, cannot be offset against the mortgage debt in this court 5 unless there is some peculiar equity in the case to take it out of the general rule. For upon a mere question of offset under the provisions of the revised statutes, the principles of this court and of courts of law are the same. (Holden v. Gilbert, 7 Paige’s Rep. 211.) And the demand set up in the appellant’s bill, in this case, is one which could not have been offset in a court of law, in a suit brought against him on the bond given with the mortgage to the respondent. But an attempt is made in the bill to take this case out of the general rule, by an allegation that the respondent has parted with some of his property, and threatens to put the rest of it out of his hands,'"so as to deprive the appellant of the poAver of collecting any thing of him. This is not equivalent to a charge of insolvency ; and is not sufficient to draw the investigation of an unliquidated claim into this court, as a set-off, in a case in which this court would not otherwise have the right to decree a set-off.

Again ; if this was a proper case for a set-off under the proA'isions of the revised statutes, as a liquidated demand which could have been set off in a suit at law, the decree of the court below must still be affirmed. A cross-bill is not, necessary or proper in such a case j unless it appears that a discovery is required to enable the defendant in the original suit to avail himself of that defence, or that for some other reason he could not obtain the set-off in that suit by plea or answer merely. The opinion intimated by Chancellor Sanford, in Troup v. Haight, (Hopk. Rep. 270,) that a cross-bill might be necessary, is not entitled to the force of a judicial decision, and was not called for by the case before him j nor does it appear to be founded upon any adjudged case. A cross-bill might perhaps have been necessary, previous to the revised statutes, where the defendant in the original suit, as in this case, claimed an offset of a greater sum than the amount due to the complainant in that suit. But in cases arising under the revised statutes there is an express provision that set-offs in this court shall be allowed in the same manner, and with the like effect, as in actions at law. (2 R. S. 174, § 40.) Under this statutory provision the court would have no difficulty in making a decree against the complainant, for any balance which might he found due from him to the defendant, upon the demands set up in the plea or answer of the latter ; in the same manner that a court of law is authorized to render judgment against the plaintiff, for the balance found due from him in analogous eases.

Upon the grounds, therefore, that there is no equity in this cross-bill to authorize a set-off in a case not provided for by the revised statutes, and that if it was a case within the provisions of those statutes it was sufficient to set up the defence by plea or answer, and that no cross-hill was necessary or proper, the demurrer was properly allowed by the vice chancellor. The decree appealed from must there-fore he affirmed with costs.


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    Evarts & Smith vs. Becker and others.
    A defendant against whom the complainant’s bill has been taken as confess--, ed for want of appearance, after due publication against him as an absen-. tee or non-resident, is entitled as a matter of right to come in and make a defence to the suit, without an affidavit of merits, upon the payment of" such costs as the court may deem to be reasonable.
    Where a bill is taken as confessed against a defendant, as absent from the state or as concealed therein, who has a fixed and notorious domicil within the state, and is neither absent nor concealed, the order to take the bill as confessed will be set aside as irregular, and without costs, if the defendant applies the first opportunity after he has notice of the irregular proceedings against him.
    To obtain an order for publication against a defendant who resides in the ?tatetbut who is a,bsept therefrom or concealed within the same, the affidavit should state the place of residence of the defendant, the particular circumstances of his absence and probable duration thereof, and the names and residences, or other descriptions, of the persons from whom the information of such absence or concealment was obtained ; to enable the court to judge of the necessity or propriety of proceeding against the defendant by a publication of tiie notice, instead of a personal service of the subpoena.
    An affidavit which merely states that the deponent believes that the defendant resides in the state, and that the subpoena could not be served on him by reason of his concealment within the state or of his continued absence from the place of his residence, is not sufficient to authorize the court to grant an order of publication.
    October 6.
    This was an appeal from a decision of the vice chancellor of the seventh circuit, refusing to set aside an order of publication against Becker and Tremells, two of the defendants, and the subsequent proceedings thereon, for irregularity. It appeared by the papers before the vice chancellor, that at the time of the filing of the complainants’ bill, and at the time the order for publication was granted, Becker and Tremells were both residents of one of the out-wards of the city of New-York; that one of them was a man of family, and a householder, although their names were not found in the city directory; and that neither was absent from his residence, or concealed. The complainants’ papers, however, showed that their solicitor had taken great pains to ascertain the residence of the defendants, by inquiries in the city of New-York, but could not find their residence, so as to serve the subpoena on them ; although the subpoena was left for some time with the sheriff to be served. An order for publication for three months was obtained, upon an affidavit of the complainants’ solicitor that he was informed and believed that the subpoena could not be served on the defendants by reason of their concealment within this state to avoid the service of process, or by reason of their continued absence from their place of residence. Upon their neglect to appear within the time limited by the order, the bill was taken as confessed ; and a decree of foreclosure, &c. was entered, and the property advertised for sale, before they were aware of any proceedings against them. The vice chancellor denied the application, to set aside the proceedings against them for irregularity; but opened their default, and permitted them to come in and defend the suit within thirty days, upon condition that they paid the taxable costs of the order for publication, and of all subsequent proceedings, including the costs of opposing their application.
    C. C. Marsh, for the appellants.

      A. Gould, for the respondents.
   The Chancellor.

The affidavits and counter affidavits as to the merits of the defence of these appellants were wholly unnecessary. For it was a matter of right for them to be let in to make a defence, upon payment of such costs as the court should think reasonable ; even if the order for publication and all the subsequent proceedings had been strictly regular, and conformable to the statute in all respects. (2 R. S. 187, § 133, 137.) The only question therefore is, whether the proceedings were strictly regular; when in point of fact both the appellants had a known and fixed residence in this state, and were neither absent therefrom, nor in any way concealed. In the case of Jermain v. Langdon and others, [ante, p. 41,] not yet reported, I came to the conclusion that it was irregular to proceed against a defendant, as an absentee, who had a fixed and notorious residence in this state ; if he was neither absent therefrom nor concealed so that the process could not be served. And that, in such a case, if the defendant applied the first opportunity after he had notice of such proceeding against him, it would be a matter of course to let him in to make his defence, without charging him with any costs. The only difference, in this respect, between that case and the one now under consideration, is, that the defendant there was proceeded against as a non-resident of the state, and that here the appellants were alleged to be residents, but that they were concealed within the state, or were not amenable to the service of process by reason of their continued absence from their places of residence.

A defendant who has a fixed and notorious residence, and whose only fault is that his adversary does not succeed in finding such residence, certainly ought not to be deprived of his right to a personal notice of the proceedings against him ; nor be charged with costs which are the result of a mistake of the complainant, or his solicitor, in supposing such defendant is absent or concealed.

I think the affidavit, on which this order to advertise was granted, was defective in not stating the particular grounds upon which the complainants’ solicitor founded his belief that the defendants were concealed within this state. For he certainly had no grounds for believing that they were not amenable to the process of the court by reason of continued absence from their place of residence, in the state, when he could not find where that place of residence was. If the residence of the defendant in this state is known to the person who attempts to serve the subpoena, he should go to his house, or place of abode, and make inquiries for him ; unless he has ascertained the fact, from some credible source, that he is actually absent from home; under such circumstances as to preclude the probability of his return within any reasonable period of time. And in case of such absence, the particular circumstances should be stated, the probable duration of such absence, and the names and residences or other description of the persons from whom the information was obtained ; to enable the court to judge of the necessity or propriety of proceeding against the defendant by an order of publication, instead of a personal service of the process. It would also be proper, in the affidavit, to state where the defendant’s residence was; so that the order might be directed to be published in the proper county, to bring the notice home to his family, or to the persons with whom he resides if he is not a householder. If the place of his residence cannot be ascertained, the circumstances should be stated upon which the person who makes the affidavit founds his belief that he is still in this state, and is concealed therein so that process cannot be served on him. A simple affidavit, that the deponent believes that the defendant resides in the state, and that the process of subpoena could not be served by reason of his concealment within this state, or of his continued absence from the place of his residence, certainly is not sufficient to authorize the court to grant an order of publication. Where, after diligent search and inquiry, the residence of the defendant cannot be ascertained, if the affidavit contains no grounds for believing that he actually resides, or has his domicil, in this state, or in the United States, or in either of the Canadas, the order of publication, instead of requiring him to appear within three months, should fix it at nine months ; the longest time mentioned in the statute.

As these defendants had an open and notorious residence in New-York, and there is no reason to suppose that there was any attempt, on their part, to conceal the knowledge of such residence from the complainants or any other person, and as they were not in fact either absent or concealed, they ought not to have been charged with the payment of costs, not caused by any fault of theirs.

The order appealed from must therefore be reversed. The order for publication, and all the subsequent proceedings, so far as the appellants are concerned, must be set aside ; provided the defendants put in their answer to the complainants’ bill within forty days after service of a copy of such bill, on their solicitor, with notice of the order to be entered on this decision. The costs of the defendants’ application to the court below, at the usual allowance of $15, and their taxable costs upon the appeal, to be costs in the cause; and to be allowed to them in case they succeed in their defence to the suit, but not otherwise. And the proceedings are to be remitted to the vice chancellor to carry into effect this decision.


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    Beekman vs. Gibbs and others.
    Since the act of 1840, to reduce the expense of foreclosing mortgages in the court of chancery, the surplus moneys, arising upon a master’s sale under a decree of foreclosure, after satisfying the complainant’s debt and costs and prior liens upon the mortgaged premises, cannot be applied to the payment of junior incumbrances,or be otherwise disposed of or distributed, until the master’s report is filed and the surplus moneys brought into court.
    Where the complainant in a foreclosure suit makes a junior mortgagee of the premises a party, the court may make a decree directing a sale of so much of the mortgaged premises as will be sufficient to satisfy the amount due on such junior mortgage and all intermediate liens and incumbrances, in addition to the amount of the complainant’s mortgage and costs; and the master may be directed to ascertain the amount of such liens previous to the sale. But before such junior mortgagee can be paid, the master’s report of the sale must be filed and the surplus moneys brought into court; so that other persons, who have not been made parties to the suit, may have an opportunity to file their claims to such surplus moneys, according to the provisions of the 136th rule.
    October 6.
    The bill in this cause was filed to foreclose a mortgage upon four lots, lying together, in the city of Rochester, on each of which lots there was a store. The ¡New-York Life Insurance and Trust Company were the first mortgagees, and had two separate mortgages, of |1500 each, on undivided moieties of the premises. The complainant was the second mortgagee of the whole premises, and there was about $1100 due on his mortgage. The defendants, Suydam, Sage & Co. were the third mortgagees of the whole premisees, for about $12000 ; all of which was due. The Trust Company having consented that the mortgaged premises might be sold under the decree subject to the liens of their prior mortgages, Suydam, Sage & Co. the junior mortgagees, who had put in an answer setting up their mortgage, asked for a direction, in the decree, to sell the whole premises ; and that the master might be directed to pay the amount of their mortgage out of the proceeds of the sale, after satisfying the complainant’s debt and costs ; to save to them the expense and delay of filing a new bill to foreclose their mortgage.

      D. Codwise, for the complainant.
    D. Greig, for the defendants, Suydam, Sage & Co.
   The Chancellor

decided, that on sales under decrees made subsequent to the act of May, 1840, to reduce the expense of foreclosing mortgages in the court of chancery, the surplus moneys arising upon the sale, beyond the amount of the complainant’s debt and costs, and of the pri- or liens upon the premises, could not be disposed of, or ordered to be distributed, until after the master’s report of the sale had been filed and such surplus moneys brought into court; that as judgment creditors, and others, who were not made parties to the suit, and whose liens or claims upon the mortgaged premises were subsequent to the complainant’s mortgage, would be foreclosed by the sale, they must have an opportunity to come in and make their claims to such surplus, according to the 136th rule of the court; that the answer of the defendants, setting up their junior mortgage, was not evidence of the existence of that mortgage as against defendants who suffered the bill to be taken as confessed, or against incumbrancers who were not made parties; and that such incumbrancers would still have the right to insist that such mortgage was not due, or that it was junior to the judgments or decrees under which they claimed.

But the chancellor held it was proper that sufficient of the premises should be sold to satisfy the junior mortgage of Suydam, Sage & Co. without the expense of a new foreclosure suit; so far as it could be done consistently with the rights of the other incumbrancers. He therefore directed the master to inquire, preliminarily, what was due to those defendants upon the mortgage set up in their answer, and what was due upon all prior liens upon the mortgaged premises subsequent to the complainant’s mortgage, and then to sell enough of the premises to satisfy the amounts thus ascertained, as well as the complainant’s debt, and costs; and to bring into court all the surplus moneys arising upon such sale, beyond the amount due to the complainant; to abide the further order of the court, after the master’s report of the sale had been made and filed.


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    Braker vs. Devereaux and others.
    Where all the parties in a partition suit arc adults, and have been personally served with process, the court does not examine the proceedings, to ascertain whether ail the proper parties are before the court, or whether the master has stated their several rights and interests in the premises correctly, in his report.
    If the necessary parties are not before the court, in a partition suit, so as to make the decree for partition final and effectual as to all persons interested in the premises, the defendants who are served with process should appear and make that objection.
    But where persons arc proceeded against, in a partition suit, as absentees, or as unknown owners of undivided portions of the premises, or where the rights of infants are involved, it is the duty of the court to look into the proceedings and sec that the rights and interest of such absentees, or infants, are correctly stated in the master’s report; and that all proper persons are made parties, so that the decree will be effectual to bind their rights, as between such persons and the absent or unknown owners, or the infant defendants.
    Where an undivided portion of the premises, of which partition is sought, has been conveyed to a trustee upon a trust not authorized by the revised statutes, the cestui que trust is a necessary party to the suit; to make the decree binding upon his interest in the premises.
    If the absolute title to an undivided portion of the premises is vested in a trustee, upon a valid trust, it seems it is not necessary to make the cestui que trust a party to a partition suit in the court of chancery; but that it will be sufficient to bring the trustee, who has the whole legal estate in the premises, before the court.
    Where one of the tenants in common, of an undivided tract of land, pays the taxes upon his share of the tract, and a certain number of acres, undivided, arc sold out of the whole tract, to pay the taxes upon the shares of his co-tenants, his legal interest in the whole tract will not be diminished by such sale ; but the sale will only diminish the interests of his co-tenants in the undivided tract,
    October 6.
    The bill in this cause was filed for the partition of the undivided lands in Adgate’s eastern purchase, in the counties of Oneida and Herkimer, and was taken as confessed against the defendants who were made parties as known owners, upon a personal service of the subpoenas upon them respectively; and the complainant advertised, under the statute, as against certain unknown persons or who were supposed to be owners, or tenants in common with Nicholas Gouvernier, of an undivided 3950 acres in the tract. Upon the coming in of the master’s report as to the title, the defendants who had appeared in the cause consented to the confirmation of the report; and the case was submitted to the court for a decree appointing commissioners to make partition accordingly.

      R. Ten Broeck, for the complainant.
   The Chancellor.

In cases of this kind, where all the parties who are to be affected by the decree in partition are adults,and have been personally served with process, it is not the practice of the court to examine the proceedings particularly, for the purpose of ascertaining whether all the proper parties are before the court, or whether their respective rights and interests are correctly stated in the master’s report; as it is the duty of the defendants, or their solicitors, to except to the report of the master, if he has not stated their rights correctly upon the evidence before him. And if the necessary parties are not before the court, to make the decree in partition final and effectual between the parties, those who are served with process, should appear and make that objection. But where any persons are proceeded against as absentees, or unknown owners, or where the rights of infants are involved in such proceedings, it is the duty of the court to look into the proceedings, in order to see that their interests are correctly stated so far as can be ascertained from the proofs and the abstract of title reported by the master. And also to see that the proper parties are before the court, as far as their names, and rights, and interests are known; so that the decree will be effectual to bind their rights, as between them and the absent or unknown owners, or the infant defendants.

In this case the only persons proceeded against as unknown owners, are certain persons who are supposed to own, either in common with Nicholas Gouvernier or otherwise, 3950 acres, subject to certain deductions ; it being the one moiety of an undivided 7900 acres of the premises conveyed to John Watts, in December, 1800, and which moiety was conveyed by Watts to Nicholas Gouvernier, the elder, in December, 1801. It is necessary, therefore, for the court to be satisfied that the owners of all the residue of the undivided lands in the tract, are before the court; so that the share set off to the unknown owners shall not be subjected to a further diminution, or charge, to their prejudice ; as well as to be satisfied that the master has arrived at a correct conclusion as to the extent of the rights of these unknown owners.

So far as respects their rights I see no objection to the conclusion, at which the master has arrived, which can be to their prejudice, if the whole patent contains as many acres as are stated therein. But as certain quantities of land were sold, from time to time, as undivided portions of the whole tract, the master’s report should have stated that the several parties were entitled to have their several quantities set off to them in the order of alienation, subject to the proper deductions on account of the sales for taxes or otherwise ; and that the complainant, who as the grantee of Anthony Lamb is entitled to all the undivided land in the tract which had not been conveyed to others, either upon the tax sales or otherwise, was entitled to such residue, whether more or less than the supposed quantity of 18837 acres stated in the master’s report, subject to a proportionate deduction on account of the 2000 acres sold to H. Seymour in Oneida county.

In another respect, however, I perceive the master has erred in favor of these unknown owners, to the prejudice of the complainant; and also as respects the complainant and some of the other parties who have appeared in the cause. Several parcels of the lands have been sold for taxes from time to time, for the unpaid taxes upon the shares of these unknown owners as well as upon the share which the complainant subsequently purchased from A. Lamb. Each of those sales, therefore, necessarily reduced the number of acres belonging to each of the tenants in common whose taxes were unpaid at the time of such sale, rateably, in proportion to the whole number of acres held by each, at that time, in the part of the tract out of which such sale was made. For instance, it appears that at the time of the sale for taxes, in 1813, Á. Lamb was the owner of all the tract in the county of Oneida, except that undivided portion thereof which had been conveyed by the marshal to Watts, and one moiety of which had been- conveyed to Gouvernier. Watts had paid his taxes, but Lamb and Gouvernier, or the unknown owners under him, had not. The sale, therefore, of the 2000 acres for taxes, to Henry Seymour, left Watts entitled to his full share of that part of the tract, as before the sale ; that is, to the same number of acres as he had before. But the relative number of acres held by Gouvernier, or the unknown owners under him, and of those previously held by Lamb, were diminished rateately by that sale. And if the master’s abtract of the conveyances is correct, the 1650 acres, which upon the partition were afterwards set off to Seymour as an equivalent for the 2000 acres undivided, should be deducted, at that time, from the shares of the claimant under A. Lamb, and the claimants under Gouvernier rateably.

Although Watts paid the taxes on 3950 acres, which was more than his proportion of the tract which lay in the county of Oneida, it did not purport to have been paid for one of his co-tenants more than another. He, therefore, had a claim against all of them, rateably,for the money paid for their use; and their legal titles in the lands held by them were diminished in quantity rateably, by the sale for the residue of the tax, notwithstanding such excess in payment.

The same thing occurred in the sale of the lands in Herkimer county for taxes in 1821 ; when all that part of the tract was sold except 3950 acres, undivided, on which the taxes were discharged by Watts. J. C. Devereaux, as the purchaser under Watts, appears, therefore, to be entitled to his full share of the lands set off, in the partition of that portion of the tract, for the unknown owners; and the residue thereof, except the rateable proportion of Devereaux, under the subsequent purchase of 1900 acres of the 3950, for taxes, belongs to the complainant and to such unknown owners ; in proportion to the quantity of their former interests therein.

A similar result was produced by the sale to Austin, of 2900 acres in Oneida county, in 1821 ; after Henry Seymour had discharged the taxes on his undivided 2000 acres, and Watts on an undivided 3950 acres, in that part of the tract situated in that county. And also by the subsequent sale of 1000 acres in that part of the tract to J. King, after Henry Seymour had again paid his taxes on his 2000 acres, and J. H. Rogers had discharged the taxes on the 2900 acres. At this last sale the taxes do not appear to have been paid on the share of Watts. That share must therefore, be diminished rateably with those of the other owners whose taxes were unpaid. And as the expense of the partition was chargeable rateably upon the lands of all the owners of the lands divided, the 2000 acres sold in severalty to Horatio Seymour, to pay the portion of the costs upon the lands in Oneida county exclusive of the 1650 acres assigned to Henry Seymour, must be deducted rateably from the shares which the other owners held in that part of the tract, at the time of that sale.

From this statement of the rights of the several parties, it appears to be impossible to make a proper partition without a further reference, to ascertain the quantity of land contained in the whole tract and in each county separately and to ascertain how many acres in each county belong to the unknown owners, and how many to each of the known parties or owners.

There is another difficulty in this case, arising out of the provisions of the revised statutes relative to uses and trusts. It appears by the master’s report that the 2900 acres sold for taxes in the county of Oneida was, in 1829, conveyed to Green and Oliver, in trust for Antoine F. Picquet, who is not a party to the suit; and that in 1833 they conveyed the same to the defendant, Nicholas Devereaux, in trust for Picquet, to be conveyed to such persons, or to be disposed of, as he might direct. If the whole legal title had become vested in Devereaux, by virtue of that deed, perhaps in an actual partition of the legal estate, the making of the cestui que trust a party might be dispensed with ; as it would be in a partition by a court of law. But as this conveyance to Devereaux was executed subsequent to the time when the revised statutes went into operation, it is not sufficient to vest the legal title to this 2900 acres in him. The trust specified in this deed is not such an one as is authorized by the 55th section of the article of the revised statutes relative to uses and trusts. (1 R. S. 728.) And with the exception of such trusts as are there authorized and defined, the 49th section of that article declares, that every disposition of lands, whether by deed or devise, thereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of or in trust for such person ; and if made to one or more persons, to the use of or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee. Again the 47th section declared that every person who by virtue of any grant, assignment, or devise, then was or thereafter should be entitled to the actual possession of lands and the receipt of the rents and profits thereof, in law or in equity, should be deemed to have a legal estate therein, of the same quantity and duration and subject to the same conditions as his beneficial interest. The operation of these several statutory provisions was to prevent any such conveyance,made after the 31st of December, 1829, from vesting any estate or title in the trustee named in such conveyance ; and to give the legal estate directly to the cestui que trust, to the extent of the beneficial interest which the conveyance purported to grant to the trustees for his benefit. Whatever title passed under the deed of the 17th of July, 1833, vested them immediately in Picquet, as a legal estate, and not in Devereaux as the trustee. To enable the court, therefore, to make a proper partition in this case, which will be binding upon Picquet, and protect the rights of the other tenants in common, he must convey all his right and interest in the premises to Devereaux, absolutely ; or the complainant must amend his bill and make him a party. When that is done, and the cause is in readiness for the further reference, any of the parties may enter an order of course, referring the case back to the master to ascertain the quantity of land in the tract, and in each county, and the rights of the parties in the undivided lands in such counties respectively, upon the principles before stated.