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    Parks vs. Parks and others.
    Where a testator, who had three sons and two daughters, made his will sub sequent to the revised statutes, and devised and bequeathed his real and personal estate in trust to permit his widow to enjoy the use of the rents and income thereof during her life or widowhood, subject to the payment of taxes, assessments, insurance, and the interest upon the incumbrances, and upon condition that his eldest daughter should live with her and be supported out of such rents and income; and by the second and third clauses of the will the devisee in trust was directed, after the death or intermarriage of the widow, to pay the rents of lot No. 26, after payment of taxes, assessments, and insurance, and keeping down interest on incumbrances, to his son P. for life ; and the rents and income of lot No- 30, to his son S. for life; and by the fourth clause, he gave a similar beneficial interest in the rents and profits of lot No. 28, to his eldest daughter, who was the devisee in trust, and directed her to apply so much of the rents and profits of these lots respectively as could be spared conveniently to the payment of the principal of the incumbrances thereon, after the death or intermarriage of the widow; and further directed that if either of those three of his children should marry and leave issue, the rent of his or her lot, instead of being paid to the parent, should be applied by the devisee in trust, for the support and education of such issue; and by the fifth clause he further directed, that if either of the three died without leaving issue, the rents of that share should go to the survivor or survivors in equal portions ; but if either died leaving issue, the rent to go to such issue; and by the sixth clause, he devised lot No. 51 to those three children in fee from and after the death or marriage of his widow, but upon condition that if either should sell his or her interest therein without the consent of the others, it should be forfeited to the others, and that the whole income of this lot should be applied to satisfy the incumbrances on lot No. 26,28 and 30; and by the seventh clause, he devised to his youngest daughter, after the death or marriage of the widow, another of his lots free from the control of her husband, the rents to be paid to her on her separate receipt; and by the eighth clause, he devised to his son D., after the death or marriage of the widow, lot No. 32 for life with remainder in fee to his heirs, subject to the incumbrance thereon; and by the ninth clause, he devised lot No. 5 to his eldest daughter in fee, with the furniture and fixtures, &c., from and after the death or marriage of the widow ; and by the tenth clause, ho declared and directed that if either of his children should die without leaving issue, the share or portion of his estate, which by his will was given to such child, should go to the survivors, but if either died leaving issue, such issue should take the share of the parent; and by the
      eleventh clause, he devised and bequeathed the residue of his estate to all his children in fee, and appointed his eldest daughter trustee for all and every of the purposes of his will:

      Held, that the general intention of the testator, as indicated by his will, was to give to his wife the rents and income of his estate during her life or widowhood, subject to the charges for assessments, &c., and to the cjiarge of the support of his eldest daughter if she continued to reside with her mother; and after the death or re-marriage of the widow, to give to his five children in severalty the use or income of specific portions of the same property for life, subject to the charges and incumbrances upon their several lots or portions; and with remainder in fee, in the same specific portions of the estate, to the issue of the same children who had the life estates in their respective shares; and that if either of the five children died without leaving issue, his or her share or portion of the estate should go to the survivors in fee. And that this general intention of the testator might be carried into effect, either by giving legal estates to the objects of his bounty to the extent of their beneficial interests in their several portions of the property, or through the medium of a trustee to receive the income and apply it to their use, without suspending the power of alienation of any portion of the property for a longer period than is allowed by the revised statutes.

      Held also, that the interest of the widow in the income of the property, during her life or widowhood, being entirely distinct from the subsequent interests therein which were given to the children and their issue respectively, the devise or bequest to her was valid, whether the legal estate was vested in her, or was in the eldest daughter as trustee, to receive the income for her use and benefit; even if the limitations of the subsequent in' tcrcsts in different portions of the same property were not authorized by law. But that under the provisions of the revised statutes the legal title to the real estate, was in the widow, during her life or widowhood, and not in the eldest daughter as the trustee for her.

      Held also, that the devise of the lots No. 2G and 30 as contained in the second and third clauses of the will created valid trusts of the legal estate during the lives of the testator’s sons P. and S. under the provisions of the revised statutes; and that the trust to apply the rents and profits to keep down the interest and to reduce the principal of the incumbrances on those lots was also valid.

      Held also, that the three children only took an estate for their respective lives, in lot No. 51, under the sixth clause of the will, in connection with the general clause limiting the shares of the several children over to their issue or to the survivors of such as should die without leaving issue ; and that the other son and the two daughters took also vested interests for life in their several lots, under the fourth, seventh, eighth and ninth clauses of the will, subject to the life interest of the widow therein; and that the testator’s eldest daughter and his son D. took the legal title in their several lots to the extent of their beneficial interests therein. But whether the youngest daughter took a legal estate in her lot, or only an interest in (he income thereof, as a trust estate; Quare ?

      Held further, that none of the issue of the children would take any interest in the shares of their parents, after the termination of their lives, as an interest in a trust estate ; but that the interest to which such issue would be entitled, under the tenth clause of the will, were remainders in fee of the legal estate, in the portions of the parents respectively.
    Whether the direction, in the fourth clause of the will, in case of the marriage of either of those children and the birth of issue, to substitute such issue in the place of the parent during his or her natural life is valid; Quaere ?

    Whether the restriction, in the sixth clause of the will, as to the alienation by either of the three children of their interest in lot No. 51 without the consent of the others is valid ; Quaere ?

    Where the intention of a testator, in a testamentary disposition of his property, can be ascertained by an examination of the will itself and is not inconsistent with the rules of law, such intention will not be defeated, although from ignorance, and want of proper legal advice, he has not used the usual technical language in declaring such intent, or has misapplied legal terms.
    In the construction of written instruments creating or conveying estates or interests in property, it is the duty of the courts to carry into effect the intent of the parties executing such instruments, so far as it can be collected from the whole of the instrument, and is consistent with the rules of law.
    Yherc a will contains distinct and independent provisions, devising different portions of the testator’s property, or distinct estates or interests in the same portions of the property, some of which provisions are consistent and others inconsistent with the rules of law, the former will be permitted to stand, although the latter are declared to be illegal and void; unless the different provisions are so dependant on each other that they cannot be separated. And whore real estate is conveyed upon two or more trusts, some of which are legal, and the others are void, or unauthorized by law, the legal estate will pass to the trustee, so far as is necessary for the purposes of the authorized trusts ; notwithstanding the provision of the revised statutes which declares that where an express trust shall be created for any purpose not authorized by law no estate shall vest in the trustees.
    full effect should be given to the particular intent, as well as to the general intent of the testator, so far as his particular intent can be ascertained by the will, and as is consistent with the rules of law and with his general intent; which general intent must control in the construction of a will.
    Upon a bill filed by a party interested in an estate, for the construction of the will of the testator, and to settle the rights of the complainant under the same, if there is a particular clause in the will in the construction of which the complainant has no interest, and where some who are to be affected by the construction of that clause arc not in existence, or are not before the court as parties, and their rights if any depend upon a contingency which may never happen, the court will not settle the construction of that clause ox parte, when the only parties interested therein who are before the court do not ask for a decision of the questions which mayariseupon that clause of the will.

      Where real estate is devised to a trustee, upon a valid trust,' during the continuance of two lives in being at tho death of the testator, with a fuither limitation in trust which would have the effect, if executed as a trust, to suspend tho power of alienation beyond the time allowed by law, the last limitation as a trust is void, and the estate of the trustee will cease when the valid trusts shall have been executed. And as tho particular intent of the testator, in continuing the estate in the trustee for a longer period, cannot take effect, the legal title must thereafler vest in the cestui que trust if consistent with the general intention of the testator in relation to tho disposilion of his property; or if it cannot so vest consistently with his intention, it will belong to tho heirs at law of the testator, or to other devisees under the will.
    When all the valid purposes for which an express trust is created by will, in real property, cease or have been accomplished, the estate of the trustee in such property ceases; and every other estate or interest in the property vests in the heirs at law of the testator, or in his devisees, who have the beneficial interest therein, as a legal estate.
    Where there arc inconsistent clauses in a will, which cannot be reconciled with each other, effect will be given to the last clause as the final determination of the testator; unless his intention, as apparent from other parts of the will, requires a different construction.
    April 6.
    This was an appeal, by the defendants, from a decree of the vice chancellor of the first circuit, declaring all the provisions of the will of Peter Parks deceased in relation to his real estate inoperative and void, and that the whole of such real estate had descended to the heirs at law of the testator ; who were entitled to hold the same as if no will had been made by him.
    The testator died in 1835, seized in fee of several houses and lots in the city of New-York, one leasehold lot and some personal property; leaving a widow, Elizabeth Parks, three sons David, Peter, and Samuel, and two daughters Sarah, and Hannah the wife of P. P. Lyon, his only children and heirs at law. By his will, which was executed a few months previous-to his death, the decedent by a general clause devised all his real and personal estate to his daughter Sarah in fee, for and upon the uses, trusts, intents and purposes in the will mentioned. He then proceeded to dispose of the beneficial interest in the property, to his wife and children, by various other clauses of the will. Some of those clauses contained either nominal or actual dispositions of the beneficial interest, in the form of trustsj and in others the beneficial interest purported to be devised directly to the person for whose benefit the devise was made.
    By the first of those clauses, which was in form a trust, the devise was declared to be in trust to permit the testator’s wfife to enjoy the rents and income arising from his real and personal estate, during her life or widowhood, for her sole use and benefit ; subject to the payment of taxes? assessments, and insurance upon the property and the interest upon the incumbrances on such property. Which disposition in favor of his wife was declared to be in lieu of dower and thirds in his real and personal estate, and upon the condition that his wife and his daughter Sarah should live together at the place where the testator resided at the time of making his will; and that his said daughter should receive her support out of such rents and income during the life or widowhood of her mother. The second clause directed the devisee in trust, from and after the death of the widow, to pay the rents of the house and lot No. 26 Oliver street, after paying taxes, assessments, and insurance and keeping down the interest on the incumbrance on that lot., to the testator’s son Peter, for life. The third clause contained a similar disposition of the rents and income of the house and lot No. 30 Oliver street in favor of his son Samuel, for life. And th.e fourth clause gave a similar beneficial interest for life to the devisee in trust, in the rents and income of the house and lot No. 28 Oliver street, for her own use. She was also directed, after the death or marriage of the widow, to apply so much of the rent and income of these three lots respectively as could be spared conveniently, to the payment of the principal of the incumbrances on those lots, until the whole were extinguished. And if either of those children should marry and have issue, the rent and income of his or her lot, instead of being paid to the parent, was to be applied by the trustee for the support and education of such issue. By the fifth clause, if either of the three died without leaving issue, the rents and income of his or her share of the property wras to go to the survivor or survivors, in equal proportions. But if either died leaving issue, his or her share of such rent and income was to go to such issue; and the trustee was directed to pay the same over for the benefit of such issue in equal proportions. By the sixth clause the rent arising from the testator’s leasehold lot, No. 13 Forsyth street, was given immediately to his daughter Sarah; charged with the trust to apply so much thereof as might be necessary to the support and maintenance of a grandson of the testator, so long as he should be permitted to reside with her.
    By several other clauses in the will, neither of which in terms professed to create a trust, the testator disposed of other parts of his real estate after the death or marriage of his wife, as follows : First; he gave and devised unto his sons Peter and Samuel and his daughter Sarah, from and immediately after the death or marriage of the widow, the house and lot No. 51 Madison street, in fee ; but upon the express condition that neither of the devisees should sell, assign, transfer, or mortgage his or her share thereof without the consent in writing of the others, and if either of them did sO,his or her share should go to the others ; limiting the restriction, however, to the immediate devisees only. And he directed his said daughter to receive the rents and profits of the whole of this lot, and to apply the same, after paying taxes, insurance, and assessments, to satisfy the incumbrances on the lots No. 26, 28, and 30 Oliver street, and after such incumbrances were paid, to divide the rent and income equally between herself and her said two brothers. Secondly; he gave and devised unto his daughter Hannah Lyon, from and immediately after the death or marriage of the widow, the house and lot on the corner of Norfolk and Hester streets, in fee; without being subject to the control of her present or any future husband, or liable for his debts. And he directed that her separate receipt, for the rents and profits, should be a sufficient discharge therefor. Thirdly; he gave and devised unto his son David, the complainant, from and immediately after the death or marriage of the widow, the house and lot No. 32 Oliver street, for and during his natural life, with remainder in fee to his heirs ; subject to the payment of the mortgage which was upon that lot, by him or his heirs. And fourthly; he gave and devised to his daughter Sarah, from and immediately after the death or marriage of the widow, the house and lot No. 5 Forsyth street, in fee, together with the furniture, beds and bedding, plate, jewelry, and fixtures therein. But in a subsequent clause of his will the testator declared and directed that in case either of his children should die without leaving lawful issue, the share or proportion of his real and personal estate which by his will was given to the child so dying should go to and belong to the survivor or survivors of his said children; but if either of his children so dying should leave issue such issue should take the share of the parent so dying. He then devised and bequeathed all the residue and remainder of his real and personal estate, to his children and to their heirs and assigns forever, in equal proportions. And after appointing his daughter Sarah executrix and two other persons executors of the will, he added a further clause appointing and declaring his said daughter to be trustee for all and every of the purposes of his will.

      J. Loveridge & J. Anthon, for the appellants.
    The actual estates created, or purported to be created, by the will, are so created by the devise to Sarah in fee upon trusts, which form life estates only, and by the seventh and eighth iteips, which carry the fee ultimately. The estates which seem to be so created are as follows : Lot No. 26 Oliver street; 1. For life in the widow ; 2. Remainder for life to son Peter ; 3. Remainder in fee to his children, if any at the time of his death ; if not, then 4. Remainder in fee to surviving children of testator.—30 Oliver street; the same, substituting his son Samuel.—28 Oliver street; the same, substituting daughter Sarah.—13 Forsyth street; 1. For life in widow ; 2. Remainder for life to grandson, P. Parks ; 3. Remainder in fee to testator’s children.— 51 Madison street; 1. For life in the widow ; 2. Remainder in fee to Peter, Samuel, and Sarah ; 3. Remainder, if either die without issue, to the survivors.—Corner of Norfolk and Hester streets ; 1. For life in the widow ; 2. Remainder in fee to Hannah Lyon; 3. Remainder to surviving children.—32 Oliver street; 1. For life in the widow; 2. Remainder for life to David Parks; 3. Remainder to his heirs.—3 Forsyth street; 1. For life in the widow; 2. Remainder in fee to Sarah; 3. Remainder to testator’s surviving children, if she dies without issue. The trust to permit the wife to enjoy the rents and profits of all the real and personal estate, &c. during her natural life, being a mere naked trust, is turned, by the operation of the statute, into a legal estate of like quantity and duration in the wife. (1 R. S. 727, § 47.) The trusts to receive the rents and profits of numbers 26, 30, and 28 Oliver street, and 13 Forsyth street, and pay them over to the children mentioned in the several devises of these premises, are valid trusts. (1 R. S. 728, § 55, subd. 3. Nelson, Ch. J., Hawley v, James, 16 Wend. 118.) The absolute devises in fee of the premises 51 Madison street, 32 Oliver street, 3 Forsyth street, and Norfolk and Hester streets, control the devise in fee to the trustee, and are valid. When properly considered, the power of alienation is not suspended for more than two lives in any part of the property devised.

      J. A. Morrill fy J. W. Gerard, for the respondent.
    Peter Parks, deceased, made his will 4th of February, 1835, leaving his widow, Elizabeth, two daughters, Sarah Parks and Mrs. Hannah Lyon, three sons, David, Peter, and Samuel, and Peter a grandson, son of one of them. He gives the whole estate to his daughter Sarah in trust; to his widow he gives a life estate in the whole property. He left seven houses, giving Sarah, however, two. On the death or marriage of his widow he gives life estates to his five children and his grandson in separate houses, (giving two houses, however, to his daughter Sarah,) and in one house he gives to three of his children life estates. On the death of any of his children without issue, he gives the fee to the survivors; and on the death of any of them with issue, to such issue in fee. And it is manifest, that as to the six houses, (three given by the first division of the will to the three children, and three by the last to the other children,) there is the right of survivorship in each house among three lives, after the widow’s life estate is spent, if his children should have no children. In both these great devises of the will, it is a manifest possible tying up of the right of alienation for more than two lives in being at the death of the testator; which is against the provisions of the revised statutes. In each devise, besides the widow’s life estate, there are three life estates, among which there is the right of survivorship in fee in each house, in case the children leave no children; and the fee may not vest in the third surviving child until after the death of the widow, and of two of the children, the two dying without issue. In which event such surviving child will not take until after the expiration of three life estates. Within the statute there can only be the right of survivorship among two life estates, besides the life estate of the widow ; so as to make the fee vest in the third life estate instanter ón the termination of the two lives allowed by the statute. If the last surviving child alone should have issue to take the whole fee in the three houses, such issue will not take until after the termination of four life estates, viz. the estates of the widow and the three children. Supposing the trusts to be valid within the third subdivision of the 53d section of the chapter on trusts, by these trusts the power of alienation is possibly suspended for more than two lives. It is possible that for more than two lives, persons in esse cannot be designated who will be entitled to the ultimate fee. (14 Wendell, 303, 304, 310, 312, 319. Id. 299. 16 Wendell, 139, 140, 164, 165. 1 R. S. 1st ed. p. 723, § 14, 15, 36. James’ will, 16 Wendell, 61. Clendenning’s will, 8 Paige, 308.) The disposition of the house 51 Madison street is a clear possible, if not a positive, suspension of the power of alienation for three lives, viz. of the widow, and two of the children. It is the same as if the testator had limited the survivorship to the three, vesting the whole fee in the last survivor, which is, of course, within the prohibition of the statute. The children have not the power to sell the trust. The mere possibility, that the alienation may be suspended for more than two lives, avoids the devises. (James’ will, 16 Wendell, 63, 64, 65, 68, 120,121, 125, 126, 133, 175.) The remainder over to the surviving children or child, on the death of a child or children without issue, or to the issue, if any living at the death of such child, are contingent remainders. (14 Wendell, 310. 1 R. S. 2d ed., 718, § 13.) The remainders are void, because they are contingent, and depend upon the limitation of the trust term, which being too remote, the contingent remainders limited on it are also, by necessary consequence, too remote. (14 Wendell, 310 to 312,319, 320,327. As to power in trust, 14 Wendell, 323. James’ will, 16 Wendell, 69, 139, 140, 141.) The trusts, however, are not valid within the third subdivision of the 53d section of the revised statutes on trusts • they not being to apply the rents and profits to the use of the beneficiaries, and the beneficiaries themselves not being such as are contemplated within the statutes. And, in addition, the trustee is also a cestui que trust. (See opinions of Young and Maison, (Senators,) and Nelson, Ch. J., in Lorillard’s will, 14 Wendell, 320 to 323. James’ will, Bronson, J., 16 Wendell, 156, 159, 160.) The trustee having one entire estate, if part of the trusts are bad, being against the statute, the whole are vitiated ; and, because the general intent of the testator being broken up, no particular intent connected with it will be allowed to stand. (Lorillard’s will, 14 Wendell, 342. Idem, 351. James’ will, 16 Wendell, 169.)
   The Chancellor.

It is very evident that the testator in this case, or the scrivener who drew the will if it was not drawn by the decedent himself, had no clear conception of the difference between a use and a trust in real estate; or what words were necessary to create a trust estate, as contradistinguished from a legal interest in lands, or in the rents and profits thereof. And he must have had still less knowledge of the legal meaning of some of the technical expressions which are used in different parts of this will. Hence there is a strange confounding of common place expressions and of technical legal terms, in the various and complicated provisions of the will. And some of those provisions, upon a cursory view of them, are apparently in direct conflict with other provisions contained in the same instrument.

But the intention of a testator, as to the disposition of his property by will, is not to be defeated, where such intention can be ascertained upon a careful examination of the whole will, and the intention is not inconsistent with the rules of law; although from ignorance and the want of proper legal advice he may not have used the usual technical language in declaring such intent •, or because he or his scrivener may have misapplied the words use and trust, and other legal terms. This was the rule of the common law in the construction of wills. And the revised statutes declare, that in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties; so far as such intent can be collected from the whole instrument and is consistent with the rules of law. (1 R. S. 748, § 2.) It is also a well settled principle of law that where a will contains distinct and independent provisions, devising different portions of the testator’s property, or distinct estates or interests in the same portions of the property, some of which provisions are consistent and others inconsistent with the rules of law, the former will be permitted to stand, although the latter are declared to be illegal and void ; except where they are so dependent on each other that they cannot be separated. And in the recent case of Darling v. Rogers and Sagory, (22 Wend. Rep. 483,) it has been settled by the court of dernier resort, that where real estate is awarded upon two or more trusts, some of which are legal and the others are void or unauthorized by law, the title passes to the trustee so far as is necessary for the purposes of the authorized trusts; notwithstanding the provision of the revised statutes which declares that where an express trust shall be created for any purpose not authorized by those statutes no estate shall vest in the trustee. (1 R. S. 729, § 58.)

Applying these principles to the case under consideration, I think all or nearly all of the provisions of this will can be sustained, consistently with the rules of law, and with the particular as well as the general intentions of the testator ; so far as those intentions can be ascertained from a careful examination of every thing contained within the four corners of his will.

The general intention of the testator appears to have been, to give to his wife the rents and income of the bulk of his estate, during her life or widowhood, subject to the taxes, assessments, expenses of insurance, and the keeping down of the interest on incumbrances in the meantime; and to the charge of the support of his daughter Sarah, who was unmarried, and who was expected to live with her mother in the family mansion ; and after the death or re-marriage of the widow, to give to his five children in severalty the use and income of specific portions of the same property, for life, subject to the taxes, assessments, expenses of insurance, and to the incumbrances upon their respective lots or portions of the estate ; with remainders in fee in the same, specific portions of the property to the issue of the children respectively who had taken the life estates therein ; and that if any such child died without issue, his or her specific portion of the property should go to the surviving brothers and sisters in fee.

To carry into effect this general intent of the testator, no trust was necessary. Nor could this general intention of the testator, whether carried into effect by giving legal estates to all the objects of his bounty, or by giving to the widow and children the rent and income of the property through the medium of a trustee, suspend the power of alienation of any portion of the property for a longer time than during the continuance of two lives in being at the death of the testator. In the first case, the power of alienation of each separate share or portion of the property would only be suspended during the life of the child of the testator to whom the remainder for life was limited. For upon his or her death, even during the life of the widow, the remainder in fee, either in the issue or in the surviving brothers and sisters, would become immediately vested in interest ; so that such ultimate remaindermen, by joining with the widow, could at once convey an absolute fee to the purchaser in that portion of the estate. And in respect to every other portion of the estate it would only remain inalienable during the continuance of the life of the child upon whose death the ultimate remainder in fee was limited to vest in interest. In the second case, the trust to receive the rents and profits and pay them over to the widow during her life or widowhood, and then to the specified child for life, could only suspend the power of alienation in each separate portion of the estate for the lives of the widow and the child; under the sixty-third section of the article of the revised statutes relative to uses and trusts. For the ultimate remainder in fee must necessarily vest in possession, as well as in interest, at the termination of those two lives, in being at the death of the testator.

This will also shows that the testator, in addition to this general intention to give the income of his property to his wife during her life or widowhood, and to give his children life estates in distinct portions of it afterwards, thought proper to place the life estates of some of his children, in their portions of the property, under the power and control of a trustee for their use ; and to secure the appropriation of a part of the income, which might not be needed for their support and maintenance, to the extinguishment of the incumbrances which were charged on that part of the estate. Hence we find him using different language in reference to the several portions of the estate appropriated to the use of his different children, after the death or marriage of the widow. It is necessary therefore to give full effect to these special intentions of the testator, so far as they can be ascertained by the will and are consistent with the rules of law, as well as to his general intention as to the disposition of his property after his death. The rule of construction, in such case^ is to give effect to the whole of the language of the testator in expressing his particular intent, provided it is not inconsistent with the general intention ; which latter intention must control in the construction of the will. (Constantine v. Constantine, 6 Ves. Ref. 99. 1 Rob. on Wills, 3 Lond. ed. 356. Dawes v. Swan, 4 Mass. Ref. 208.)

The intention of the testator to give to his wife a beneficial interest in all the income of his estate, subject to certain specified charges thereon, during her life or widowhood, except in the rents of the leasehold premises No. 13 Forsyth street, is perfectly apparent. And as the estate or interest thus devised to the wife is entirely separate and distinct, from the subsequent estates and interests in the same premises, limited thereon in favor of the children and their issue, I think there is no reason to doubt that the devise to her is valid ; whether she takes the legal estate in the premises under the devise, or such legal estate is vested in the daughter, as her trustee, to receive the rents and profits and pay them over to her. Whether it is the one or the other is a question with which the complainant has no concern. For in neither case can he claim the possession of the property or any part of the rents and profits or income of the estate during her life or widowhood. Although there is a general devise of all the testator’s ¡property to his daughter Sarah upon the uses and trusts therein mentioned, the direction to fermit the widow to enjoy the rents and income of the estate, for her sole use, might probably have given the legal estate to the mother as an executed use previous to the adoption of the revised statutes. (Broughton v. Langley, 2 Ld. Raym. Rep. 873. 2 Taunt. Rep. 109.) But the question is placed beyond, a doubt by the 47th and 49th sections of the article of the revised statutes relative to uses and trusts, (1 R. S. 727.) These sections prohibit the vesting of any estate in the trustee in trusts which are merely nominal; and turn the interest of the cestui que trust into a legal estate, of the same quality and duration, and subject to the same conditions as his beneficial interest in the property.

It does not appear by the will, or by the pleadings, what was the extent of the testator’s interest in the leasehold premises No. 13 Forsyth street. Although the devise to the widow was broad enough to cover this property, I am satisfied the testator intended to exclude it from that devise, and to convey an immediate beneficial interest therein to his daughter Sarah ; subject to the charge of providing for the support and maintenance of her nephew out of the rents and profits, so long as he should be permitted to reside with her. And as the devise of the rents and profits to her was general, and not limited to her life merely, she would have taken the whole of the testator’s estate and interest in that property, whatever it was, under the provision of the revised statutes on that subject, (1 R. S. 748, § 1,) if such devise had not been controlled by the subsequent clause of the will in relation to the duration of the estates or interests of the testator’s children in their respective portions of the property.

The testator, for some reason which is not explained in his will, thought proper, instead of giving to his sons Peter and Samuel the full control of their respective life interests in the two houses and lots No. 26 and 30 Oliver street, to give them the beneficial interest therein, through their sister as a trustee. That was a trust clearly authorized by the revised statutes, as to the interest of each, according to the decision in the case of Gott v. Cook, (7 Paige’s Rep. 521 ;) although, in the case of Peter, she was authorized to pay over the rents and profits when received, and was not in terms directed to apply them to his use ; as by a subsequent clause of the will she was directed to do in relation to the rent and income of the lot, the beneficial interest in which belonged to Peter.

The revised statutes also have authorized the creation of an express trust to lease lands for the purpose of satisfying a charge thereon. The authority of the trustee, therefore, to pay the interest of the incumbrances out of the rents and profits of these lots in the first place, and to apply so much of those rents and profits as might be spared from the support of the cestuis que trust, to reduce the principal of the incumbrance on their respective lots, was therefore valid j and should be carried into effect, according to the intention of the testator. I have some doubt as to the validity of the direction to substitute the issue of the sons, if they should have any, as the persons beneficially interested in these rents and profits during the life of the sons. It appears to be an attempt to create a succeeding estate for the residue of the life of the parent in favor of persons not in esse at the death of the testator ; contrary to the prohibition of the statute against limiting successive life estates except to persons in being at the creation thereof, (l R. S. 723, § 17.) If this provision of the will is absolutely void, it leaves the previous devise of the rents and profits, to the sons for life, unimpaired. (Ring v. Hardwick, 4 Land. Jurist, 242.) And their issue, if they have any, will come in as the ultimate remaindermen in fee; under the general provision contained in the seventh clause of the will, giving the share of each child, after the termination of his or her life estate therein, to his issue in fee. Under that clause of the will the issue take the ultimate remainder in fee as a legal estate, and not as a devise in trust. The question, then, as to these substituted remainders in favor of the issue, if there should be any, which the testator has attempted to carve out of the life estates Which he had previously devised to Peter and Samuel and Sarah respectively, is one which can only arise between them and their issue. And as it does not appear that either of those children have any issue, the question may never arise. The decree in this case, therefore, ought not to attempt to settle that question ex parte especially when the only parties now before the court who can ever be interested in the decision thereof, do not ask the court to determine the extent of their rights under this part of the will, as against an unborn generation. As there is nothing in that clause of the will which suspends the power of alienation beyon,d two lives in being at the death of the testator, the devise of the life estate in each lot is valid.

In the limitation over of the ultimate remainders to the issue, in each of these lots, the testator, in the clause of the will which is called thejifth trust clause, appears to have intended that the issue, or the survivors of the deceased child if he or she should die without issue, should take the rents and profits through the medium of a trust; as the trustee is directed to pay over such rents and profits, which necessarily implies that she should continue to hold the legal estate as the trustee, to enable her to receive such rents and profits for distribution. Such a trust would be invalid, as the effect of it might be to render the estate inalienable for a longer time than during the continuance of two lives in being at the death of the testator; under the 63d section of the article of the revised statutes relative to uses and trusts. The particular intention of the testator in this respect must therefore fail. But his general intention, as expressed in the subsequent clause of his will, must still have the effect to carry the rents and profits to the issue, after the termination of the life estate of the parent," as a legal estate in remainder in fee in that portion of the property. And if the devisee for life should die without leaving issue, the remainder in fee will go to all the surviving children of the testator, as tenants in common, under this subsequent clause of the will; instead of going to the survivors of Peter and Samuel and Sarah only, under the void trust clause. To that extent, if either of the three should die without leaving issue in the lifetime of the complainant, he will be benefitted by having the fifth trust clause of the will declared inoperative and void. The limitation of this illegal trust in favor of the remaindermen cannot, however, affect the previous devise of the life estates in these several lots in favor of those three children respectively ; although as to the lots of the two sons the trustee holds the legal estate in trust during the continuance of their respective lives, as a valid trust. For when all the valid purposes for which an express trust is created by will in real property cease, or have been accomplished, the estate of the trustee ceases. (1 R. S. 730, § 67.) And every other estate or interest in the premises vests in the devisees who have a beneficial interest therein, or in the heirs at law of the testator by whom such express trust is created, as a legal estate. (Idem. 729, § 62.)

The clause of the will disposing of the house and lot No. 51 Madison street, to three of the testator’s children, after the death or intermarriage of the widow, purports to convey it to them in fee as tenants in common ; subject to the charge upon the rents and profits for the extinguishment of the incumbrances upon the three lots on Oliver street. But this devise is necessarily controlled by the subsequent clause, which restricts every devise of the testator, to a child, to a life estate therein. For the rule in relation to the construction of wills, where there are inconsistent clauses w'hich cannot be reconciled with each other, is to give effect to the last clause as the final determination of the testator ; unless the intention of the testator, as apparent from other parts of the will, requires a different construction. (Per Parsons, Ch. J. 4 Mass. Rep. 215. Covenhoven v. Shuler, 2 Paige’s Rep. 123. Constantine v. Constantine, 6 Ves. Rep. 100.) I admit this rule is not founded upon a very satisfactory reason, and is only to be adopted -from the necessity of the case. Here, however, the restriction of the interests of the testator’s children to life estates only, in their several portions of the property, appears to be most consistent with the general intention of the testator ; so far as his intention can be ascertained from the whole will. It is not necessary to express any opinion upon the question whether the testator had or had not the power to prohibit either of the devisees from selling, his or her life interest in the undivided third of that lot, without the written consent of the co-tenants ; as the power of alienation is not thereby suspended beyond the period allowed by law. (See Baker v. Newton, 2 Beavan’s Rep. 112.) The restriction is in terms confined to the three children ; so that upon the death of either, his or her undivided share of the property may be immediately sold by the ultimate remaindermen in fee, to whom that share will then absolutely belong. The power of conveying a perfect fee in each share is necessarily suspended during the life of the devisee for life •, because the ultimate remaindermen, who are to take the contingent fee, cannot be ascertained until his or her death. And the power to alien the life estate of the sons in their respective shares is probably restricted by law for the same period, if their sister takes the legal interest in those shares, as trustee to receive the rents and profits for their use j as I think she does by implication.

The devise of the house and lot to Mrs. Lyon, after the death or marriage of the widow, is one in which by the common law either her sister or her husband might be deemed a trustee by implication, to secure to her the separate use of the property during coverture. (Harton v. Harton, 7 Term. Rep. 652. Bennet v. Davis, 2 Peere Wms. 316.) But tinder the provisions of the 47th section of the article of the revised statutes relative to uses and trusts, it is turned into a legal estate in the person beneficially interested ; unless by the terms of this devise it can fairly be inferred that the testator intended his daughter Sarah should receive the rents and profits and pay them over to her sister for life. That is a question which does not arise between the parties to this appeal as Mrs. Lyon and her husband are not before the court in a situation to contest that question between themselves. And they alone appear to have any interest in it. For there can be no doubt as to the validity of the devise, whether the devisee takes the legal estate^ as a remainderman for life, or a mere equitable right to the rent and income of the premises, for the same period, through the medium of her sister as a trustee to lease the premises and receive and pay over the rents and profits to her, or to apply them to her seperate use. But for the reasons before stated, Mrs. Lyon only takes a life estate in this lot, under the particular clause of the will in which the devise for her separate use is found ; unless she should survive all her brothers and her sister and die without issue. And the ultimate remainder in fee, after her death, will vest in her issue, if she leaves any ; or in default of such issue, in her surviving brothers and sister, under the subsequent general clause of the will on that subject.

Under the next clause of the will, the complainant takes a vested remainder for life in the house and lot No. 32 Oliver street, after the death or remarriage of the widow, as a legal and not as a trust estate; subject to the charge thereon. And the ultimate remainder in fee in that part of the property, after his death, will vest in his issue, or in his surviving brothers and sisters, under the subsequent general clause; notwithstanding the particular limitation over of such ultimate remainder in this previous clause, which is inconsistent with the general clause. But if he should die without leaving issue, after the death of all his brothers and sisters, the ultimate remainder in fee will vest in those who shall then be his heirs at law ; according to the special limitation to his heirs general, contained in the previous clause, under the provision of the revised statutes on that subject. (1 R. S. 725, § 28.)

Sarah takes an estate for life as a legal estate in the house and lot No. 5 Forsyth street, and in the furniture, &c. therein, under the next clause of the will, after the death or marriage of the widow. And the ultimate remainder in fee in the same property, if she survives all her brothers and her sister and dies without leaving issue. But for the reasons before stated, the ultimate remainder in fee in that property will vest in her issue if she leaves any, or in default of such issue, in her surviving brothers and sister, according to the directions contained in the subsequent general clause of the will on that subject.

And if the testator left any other real or personal property, or if there is any contingent estate or interest, in any of the houses and lots mentioned and described in the will, which is not legally and effectually disposed of by some of the previous clauses, such property, estates, and interests, after the death or marriage of the widow, belong to the five children of the testator absolutely, as legal estates and interests ; under the general residuary clause of the will.

The decree appealed from must be reversed ; and a decree must be entered declaring the construction of the will and the rights of the parties under the same to be as above stated. As the complainant has failed as to every substantial part of his claim, I should have charged him personally with the costs to which the defendants have been subjected by this litigation, if the testator had not furnished some grounds for litigation by the inartificial and perplexing provisions of his will. Upon that ground alone I shall not charge the complainant with the costs of the defendants either in the court below or on this appeal. But I shall leave each party to pay their own costs in both courts ; unless the executrix has personal estate in her hands not specifically bequeathed by the will otherwise than in the residuary clause thereof. In that case she is to be permitted to retain her own costs and the costs of her co-defendants out of such personal estate ; and must also pay the complainant’s costs out of the same if there is sufficient for that purpose,

       The decree of the chancellor in this case was affirmed, upon appeal to the court for the correction of errors, in December, 1842.


source: Caselaw Access Project

author: The Chancellor,

license: Public Domain

text:
    Vreedenburgh, appellant, vs. Calf, respondent.
    Where a surrogate makes an order, under the act of May, 1837, requiring an administrator to give further security within a specified time; and the administrator immediately appeals from such order and perfects his appeal before the expiration of the time limited by the order for the giving of such further security, the surrogate has no authority pending the appeal to make the further order, directed by the statute, revoking the letters of administration; until the appellate court shall have authorized further proceedings before the surrogate upon the order appealed from.
    It seems, that where an administrator appeals from the order of a surrogate requiring further security, before the further order has been made revoking the letters testamentary in consequence of the neglect to give such further security, the respondent may, in a proper case, apply to the appellate court for an injunction to prevent the admnistrator from wasting the assets of the decedent pending the appeal.
    Where a surrogate has made an irregular or an unauthorized order, he has the power to set aside such order; and upon a proper application it is his duty to do so, where such order was made ex parte.
    April 6.
    This was an appeal from a decision of the surrogate of the county of Richmond. Special letters of administration, ad colligendum, had been granted to Vreedenburgh, upon the estate of Cornelius Roberts deceased, until probate of the will of the decedent could be made and letters testamentary granted thereon. On the 29th of October, 1838, upon the application of the respondent Calf who claimed an interest in the estate of the decedent, and after hearing of the parties, the surrogate made an order that the special administrator should give further sureties, in the sum of $35,000, on or before the 3d of November. From that order Vreedenburgh immediately appealed, and filed with the surrogate the usual bond for costs upon the appeal. And being advised by his proctor that such appeal stayed .all further proceedings before the surrogate, he neglected to give the further sureties, to execute the trust, as required by the order. In consequence of this neglect the surrogate, upon the application of the proctor of Calf, and after the expiration of the time limited for the giving of such further sureties, made the further order directed by the statUte, revoking the special letters of administration. That order was made and entered on the fifth of November. But Vreedenburgh was not aware of the existence of such order until the 8th of December thereafter ; when he immediately gave notice of an application to the surrogate to set aside or revoke such order, on the ground that it was irregularly and improperly entered after the appeal from the first order. The surrogate denied the application, with costs ; from which decision Vreedenburgh brought this appeal.
    Jlf. T. Reynolds J, R. Townsend, for the appellant.
    v2„ Taber <£• J. B. Purroy, for the respondent.
   The Chancellor,

The most important question presented in this case arises upon the construction of the revised statutes in relation to the staying of proceedings upon appeals from the decisions of surrogates. Another question has been raised, by the counsel for the respondent, as to the jurisdiction of the surrogate to entertain the application to set aside the order of the 6th of November ; even if it was irregular. I have no doubt, however, as to his power to vacate the order if it was improperly entered. The provision of the revised statutes depriving the surrogate of the authority to exercise any incidental power, not expressly given by the statute, is repealed by the act of May 16th, 1837. (Laws of 1837, p. 536, § 71.) And if the order of the 5th of November was entered when the surrogate had no power to enter such an order, he not only had the right but it was his duty to set it aside for irregularity.

The 107th section of the article of the revised statutes relative to appeals, (2 R. S. 610,) requires appeals from surrogates, in cases not before specified, or otherwise limited by law, to be made within thirty days after the order, sentence, or decree appealed from is made. The next section requires a bond, with sureties, to be given to the adverse party, by the appellant, in the penalty of at least $100 ; conditioned to prosecute the appeal to effect, and to pay all costs which shall be adjudged against the appellant by this court. And the 109th section declares that every such appeal, when perfected, except in the special cases provided for in the two next sections, shall suspend all proceedings on the order appealed from, until such appeal be determined, or until the court to which the appeal shall be made shall authorize proceedings thereon. The two next sections provide for those cases where immediate proceedings are necessary to protect the property, and for the commitment of persons for contempt, &c. And there is another exception contained in the 116th section ; which section declares that appeals from orders of surrogates, suspending or removing executors, administrators, or guardians shall not affect any such order until the same be reversed.

At the time these several provisions were adopted, the law under which this proceeding was instituted was not in force ; this being an application under the 16th section of the act of May 16th, 1837, concerning the proof of wills, executors and administrators, guardians and wards, and surrogates’ courts. (Laws of 1837, p. 529.) But a proceeding of the same nature, and substantially in the same form, was authorized by the revised statutes, to compel an executor to give security for the discharge of his trust. (2 R. S. 728 § 18 to 21.) The statutory provisions relative to appeals, so far as they would be applicable to a similar proceeding under the revised statutes to compel an executor to give security, must be equally applicable to a proceeding against a general or special administrator, under the act of May, 1837, to compel him to give further security. In neither case is the surrogate authorized to suspend the powers of the executor or administrator immediately. He is only authorized to make an order that the executor or administrator give security within such reasonable time as the surrogate shall direct, not exceeding five da_, s. And it is only upon a neglect or refusal to comply with such order that the surrogate is authorized to make the further order, to supersede the letters testamentary, or to revoke the letters of administration ; so as effectually to suspend the power of the executor or administrator by virtue of the 116th section, before referred to, pending an appeal. (3 R. S. 611.)

The bond for costs, required by the 108th section of the article relative to appeals is of course no protection against a waste of property pending the appeal in a case where the executor or administrator thinks proper to appeal from the preliminary order requiring him to give security, and before the final order founded upon his neglect to comply with such preliminary order is entered ; as was done here. Neither is the security required by that section any protection to the respondent from loss, pending the appeal from a decree or order for the payment of money by an executor or administrator, upon the final settlement of his account; nor in many other cases which might be mentioned. But the statute is imperative that the entering of the appeal and the giving of the bond for costs, in such cases, shall suspend all proceedings on the order appealed from. And the surrogate was not authorized to make the order of the 5 th of November, 1838, as his jurisdiction was suspended by the appeal. If the respondent, in a case like the present, has any remedy to prevent a waste of the property pending the appeal, where the appellant suspends the power of the surrogate to make the final order requiring him to give security, it must be by a special application to the appellate court, upon petition or affidavits, showing the necessity of its interference, by injunction or otherwise, to prevent the administrator from wasting the decedent’s property pending the appeal.

The decision of the surrogate must, therefore, be reversed, and the order of the 5th of November must be vacated. But it is not a case for charging the respondent with the costs of the appeal. The appellant having died since the argument, the order for reversal must be entered as of the time of such argument, nunc pro tunc.


author: The Chancellor.

text:
    Ledyard vs. Butler and others.
    Where the owner of land made a fraudulent conveyance thereof, and the grantee went into possession and afterwards mortgaged the same to a bona fide mortgagee, upon a loan of money, on the security of the mortgage, which mortgagee had no notice of the fraud, Held, that the mortgage was a valid security upon the land, as against a creditor of the original owner, although such creditor had previous to the giving of the mortgage, but subsequent to such fiaudulent conveyance, recovered a judgment against his debtor, and sold the premises upon an execution issued on such judgment. Also Held, that such mortgage was a valid and prior security upon the land, for the whole sum agreed at the time of its execution to bo advanced thereon, although a part of the amount was not actually paid-to the mortgagor until some days after the execution of the mortgage,and although the sheriff’s deed to the purchaser under such judgment and' execution was-recorded intermediate the recording of the mortgage and such payment.
    A bona fide purchaser or mortgagee, froma fraudulent grantee,who has neither actual nor constructive notice of the fraud, is entitled to a preference over a subsequent purchaser under a judgment against the fraudulent grantor, if such prior deed or mortgage is first recorded.
    A mortgagee is a purchaser of the mortgaged premises, to the extent of his interest therein by virtue of his mortgage, within the intent and meaning of the statute of frauds.
    Under the recording acts, as between a purchaser from the fraudulent grantee and one obtaining title under the fraudulent grantor, Ihe priority of their-conveyances depend upon the times when- they were respectively recorded1.
    April 6.
    This was an appeal from a decree of the vice chancellor of the fourth circuit, for the foreclosure of a mortgage given to the complainant, by the defendants Samuel O. Butler and wife, in March, 1830, and duly recorded. And the only question was whether the mortgage was a valid lien upon the premises, as against Henry W. Snyder the appellant, under the following circumstances :
    Samuel O. Butler the mortgagor gave the mortgage to secure to the complainant a loan of $1300; of which $700 was received upon the delivery of the bond and mortgage, on the 30th of March, 1830, and the residue about three weeks afterwards. At the time of the execution of the mortgage and of the receipt of the money loaned thereon, the mortgagor was in possession of the mortgaged premises ; claiming title thereto under a deed from his father, Giles Butler, given in July, 1823, which was duly recorded. And the complainant had no notice that the validity of such title had ever been questioned. In 1824 two suits were commenced in the supreme court, against Giles Butler, for the recovery of debts contracted by him several years before; in which suits judgments were recovered in May of the same year. On these judgments executions were issued, and on the 27th of December, 1828, all the right, title, and interest of Giles Butler in the premises was sold by the sheriff, and purchased in by F. Morss, the judgment creditor, for the sum of $900. On the 7th of April, 1830, Morss obtained a deed from the sheriff, under such sale, and put it upon record. And on the 14th of May thereafter he commenced an action of ejectment against Samuel O. Butler, the mortgagor, and recovered the possession of the premises upon the ground that the conveyance of July, 1823, was fraudulent, as against the plaintiff as a creditor of Giles Butler the grantor.
    In June, 1832, the complainant filed her bill to foreclose the mortgage, against the mortgagor and his wife, and made the judgment creditors and Morss parties defendants. Morss answered the bill, setting up the fraud in the deed of July, 1823 ; and a replication was filed to his answer. The other defendants suffered the bill to be taken as confessed. After the cause was in readiness for hearing, upon the pleadings and a stipulation between the parties to admit certain facts as a substitute for proof thereof, Morss conveyed the mortgaged premises to Henry W. Snyder,and afterwards died. And Snyder was thereupon made a party to the suit, by a bill in the nature of a bill of revivor and supplement.

      S. Sherwood, for the appellant.
    The complainant is not a purchaser within the meaning and policy of the statute of frauds. The deed, from Giles Butler to Samuel O. Butler, being admitted to be fraudulent and void as against Morss, cannot be the source of title even, to an innocent purchaser, unless the equity of the purchaser is superior, or the conveyance of the fraudulent grantee is prior in point of time, to the sale of the creditor. The sale by the fraudulent grantee must be prior in point of time to a sale for a valuable consideration by the fraudulent grantor, and it must be prior to a sale on execution at the suit of the creditor. (Anderson v. Roberts, 18 John. Rep. 532. Jackson v. Terry, 13 Id. 471.) The sale by the creditor on execution is an unequivocal act, asserting his right to avoid the fraudulent conveyance, and is all he could do. If a third party is the purchaser, the creditor gets his money, and the purchaser may compel a deed. (2 Kent’s Com. 237. Roof v. Stafford, 7 Cowen, 180; S. C. in error, 9 Id. 630.) An unequivocal assertion of right, by the creditor, to avoid the fraudulent deed, is equal to an entry, &c. by a feme covert or an infant, to avoid a conveyance. (Jackson v. Carpenter, 11 John. Rep. 542, 543. 3 Bacon’s Abr. title Infancy, 136. Touch v. Parsons, 3 Burr. 1794. Frost v. Wolverton, 1 Stra. 94.) The sheriff’s sale and certificate to Morss by which his judgment was satisfied pro tanto, although the legal title did not pass, created an equitable lien of equal sanctity and prior in point of time to the lien of the mortgage. (Laws of 1820, sess. 43, ch. 184. 2 R. S. 370. 20 John. Rep. 3. 2 Wendell, 507. 1 Cowen, 452—457. 7 Id. 554. 1 Id. 510.) The judgment against Giles Butler, the public advertisement of sale of the premises on the execution, the sale itself, and sheriff’s certificate on file, are acts amounting in judgment of law to constructive notice of the invalidity of the deed to Samuel O. Butler, and the assertion of right by the creditor. But the complainant cannot be deemed an innocent purchaser, for the six hundred dollars not loaned till after Morss’ deed was recorded, and the legal title vested in him. Although a mortgage may be good between the parties to secure subsequent advances, such advances after the registry, must be subservient to intermediate claims of other parties. (Hendricks v. Robinson, 2 John. Ch. Rep. 309. James v. Johnson, 6 Id. 429. Brinckerhoof v. Marvin, 5
      Id. 327. Shirras et al. v. Caig, &c. 7 Cranch, 34.) The recording of Morss’ title 7th April, 1830, was constructive notice to the complainant on the 21st of April, when the last six hundred dollars was loaned, of his assertion of title, and of the fraud of the Butlers. The loss, where parties are equally innocent, should fall on the one who enabled the fraudulent party to reap the fruits of his iniquity. (Root v. French, 13 Wendell, 570.)

      T. T. Payne, for the respondent.
    It is not pretended that the respondent had notice in fact of the advertisement of the sheriff, or of the filing of his certificate, before the execution of the mortgage of Samuel O. Butler to her. Neither the judgment against Giles Butler, nor the advertisement of the sheriff, nor the filing of the advertisement, nor of the certificate, was notice in law to the respondent ; whose interest was derived from Samuel O. Butler. Whatever notice the recording of the sheriff’s deed to Morss for the property mortgaged to the respondent, might be to subsequent mortgagees or purchasers, it could have no effect upon the rights or interests of the respondent, who was a previous mortgagee. The deed of the sheriff could not relate back to the prejudice of the rights or interests of the respondent, a third person, who was not a party nor privy thereto. (Laws of 1820, vol. 5, b. 167. Tuttle v. Jackson, 6 Wend. 215. Bissell v. Payn, 20 John. Rep. 3. Evertson v. Sawyer, 2 Wend. 509.) A mortgagee is a purchaser. (James v. Mowry, 2 Cowen, 299. James v. Johnson, 6 John. Ch. R. 429. 1 R. L. 1813, p. 77, § 6. 2 R. S. 137, § 5, 6. Chapman v. Emery, Cowp. Rep. 278. White v. Hussey, Prec. in Ch. 13. Cormick v. Trapland, 6 Dow’s Rep. 60. Noy’s Rep. 105.) The respondent then is a purchaser in good faith, for valuable consideration, without notice either in fact or in law, of the fraud, whether constructive or actual, charged upon her immediate grantor, and cannot be prejudiced thereby, either as to the first or second sum advanced upon the mortgage of Samuel O. Butler to her. (1 R. S. 762, § 37. 1 R. L.
      1813, p. 77, § 6. 2 R. S. 137, $ 5,7. Jackson v. Terry, 13 John. Rep. 471. Anderson v. Boyd, 18 Id. 515. Downing v. Palmateer, 1 Mon. Rep. 69. Shirras v. Caig & Mitchell, 7 Cranch, 34.)
   The Chancellor.

The equities of the parties are equal in this case; the appellant claiming in opposition to the fraudulent deed, and the respondent being a bona fide mortgagee of the premises conveyed by that deed, without notice of the fraud. The only question therefore, is, which party has the better legal right. On that question I have no doubt as to the correctness of the decision of the vice chancellor. The judgment and proceedings against Giles Butler, subsequent to the deed to his son, could not be constructive notice to a purchaser or mortgagee of the latter. For upon searching the records and finding an absolute conveyance from the father, in July, 1823, the person "who was about to purchase from the son, or to loan money to him upon his bond and mortgage, would not be bound to go further and search the records for the purpose of ascertaining whether subsequent judgments might not have been recovered against the father.

The case of Anderson v. Roberts, in the court for the correction of errors, (18 John. Rep. 515,) settles the question, that a bona fide purchaser from a fraudulent grantee is entitled to a preference over a subsequent purchaser under a judgment against the fraudulent grantor. And the supreme court, in Jackson v. Terry, (13 Idem, 471,) decided that under the recording acts the priority of conveyances, as between purchasers deriving title under the fraudulent grantor and the fraudulent grantee respectively, had reference to the recording of such conveyances. And in this case the mortgage to the complainant was executed and put on record several days before the sheriff’s deed to Morss was executed and recorded.

The mortgage having been in fact given on the 30th of March for the whole loan of $1300, as agreed for, the fact that a part of the money was not paid for some few days thereafter could not deprive the complainant of the benefit of the security for the whole sum advanced upon the credit of that security. And a mortgagee is a purchaser, to the extent of his interest in the premises, within the meaning of the term purchaser as used in the statute of frauds. (See Chapman v. Emery, Cowp. Rep. 278; White v. Hussey, Prec, in Ch. 13; Gardiner v. Painter, Sel. Cas. in Ch. 65; Cormick v. Trepand, 6 Dow’s Rep. 60; Amb. Rep. 289; 2 Vern. Rep. 272; Poulton v. Wiseman, Noy’s Rep. 105.)

The decree appealed from must be affirmed with costs. And the usual direction must be given, that if the premises do not sell for sufficient to satisfy the amount due on the mortgage, with interest and costs, the appellant must pay the value of the use and occupation of the property from the time of his appeal until the delivery of the possession to the purchaser upon the sale, or so much of such value as may be necessary to satisfy such deficiency; as damages for the delay and vexation caused by such appeal.

       Affirmed on appeal, December, 1842.


text:
    Shufelt vs. Shufelt and others.
    Where an administrator found among the papers of the decedent certain promissory notes which had been given to him in his lifetime, and supposing them to be justly and legally due, called upon the maker of the notes for payment, who voluntarily confessed a judgment for the amount; and subsequently mortgaged his real estate, upon which such judgment was a lien, to his father : Held, that the mortgagee could not impeach the consideration of the judgment, by showing that the notes upon which it was founded were given upon a sale of tickets in a lottery not authorized by law, and contrary to the statute.
    Where a person apparently indebted to the estate of a deceased creditor, upon being called upon for payment, voluntarily confesses a judgment for the debt to the personal representative of the supposed creditor, without apprising him that the demand is illegal, the defendant in the judgment, and those claiming under him subsequent thereto, are estopped from denying the validity of such judgment.
    In a foreclosure suit, if it appears from the complainant’s bill that he has recovered a judgment for the mortgage debt, or that the mortgage was given as a collateral security for a demand which was already in judgment, the complainant must show that he has exhausted his remedy upon the judgment at law, or the defendant in the foreclosure suit may demur to the hill, or may raise the objection in his answer.
    Where the bill in a foreclosure suit shows that a judgment has been recovered for tho mortgage debt, the court cannot make a decree of foreclosure until an execution has been issued upon tho judgment and returned unsatisfied, although the defendant has suffered the bill to be taken as confessed against him.
    The owner of land who has given a usurious mortgage thereon may sell or mortgage the land to another, generally, and give to such purchaser, or mortgagee, the same right to contest the validity of the first mortgage as he has himself. But he may affirm the validity of the usurious mortgage-, hv selling the equity of redemption in the mortgaged premises only, or by selling or mortgaging the land subject, in express terms, to tho previous mortgage ; in which case the purchaser, or subsequent mortgagee, will be entitled to the equity of redemption merely, and cannot question the validity of the prior mortgage.
    April 6.
    This was an appeal from a decree of the late vice chancellor of the third circuit. The hill was tiled to foreclose a mortgage given to the complainant, hy the defendant J. Shufelt, in April, 1835 ; and B. I. Mynderse and N. Van Vranken, the administrators of A. Mynderse, were also made defendants as the holders and owners of a judgment, against the mortgagor, which vías a lien upon the mortgaged premises. The bill, after stating the execution of the bond and mortgage, set forth the recovery of a judgment in the supreme court, on the I5th of September, 1834, in favor of B. I. Mynderse as special administrator of his brother A. Mynderse ; letters ad colligendum on the estate of the latter having been issued, by the surrogate, immediately after his death and previous to the recovery of such judgment. The bill alleged that the judgment was entered upon a bond and warrant given to such special administrator, for a pretended debt, of $743,50, due from J. Shufelt to the intestate. The complainant further stated that the debt for which the bond and warrant were given arose upon the sale of lottery tickets to J. Shufelt, by the intestate in his lifetime ; and that the greater part of such debt was for lottery tickets not authorized by the laws of this state; that the lottery tickets were sold to J. S. in the years 1832, 1833, and 1834; that only about $190 of the consideration of the notes for which the judgment was given, was for tickets in lotteries authorized by the laws of this state ; and that the residue thereof was for tickets in lotteries of other states, the sale of which was forbidden by the statute of this state. The bill further stated that the mortgagor was insolvent, and that the defendant B. I. Mynderse .had a prior mortgage upon the premises, which were not worth more than sufficient to pay such prior mortgage and the complainant’s debt. The bill also stated an accounting between the mortgagor and the administrators, in relation to other matters of account between him and the intestate, in which a balance of $47 was found due to the mortgagor; which the complainant insisted should be applied towards the satisfaction of so much of the judgment as was founded upon a legal consideration. The complainant further stated that he had tendered and offered to pay the residue of such legal consideration, and costs, &c. He therefore prayed for a decree of foreclosure and sale, and that Mynderse and Van Vranken might be decreed to release, cancel, and discharge the judgment, or to release and discharge the mortgaged premises from the lien of the judgment; and that they might be restrained by injunction from selling the premises by execution upon their judgment j or that the lien of the judgment might be postponed to that of the complainant’s mortgage ; and for general relief.
    The bill also contained the usual allegation, that no proceedings had been had at law for the recovery of the debt secured by the complainant’s bond and mortgage, or any part thereof. But it appeared in the bill itself that the bond and mortgage were given in part asa collateral security for a debt of $2730, for which a judgment had been recovered by the complainant, against the mortgagor, in the supreme court. The defendants Mynderse and Van Vranken therefore insisted in their answer that the complainant was not authorized to proceed to foreclose his mortgage, in this court, without showing that he had exhausted his remedy at law for the recovery of that part of the mortgage debt, by the return of an execution on the judgment unsatisfied, as directed by the statute. They also stated in their answer that when B. I. Mynderse was appointed special administrator, to collect the debts and preserve the property belonging to his deceased brother’s estate, there came to his possession four promissory notes of different dates, purporting to have been given to the decedent by John Shufelt, the amount of which notes, with the interest thereon,, was $743,50; that the special administrator, in order to secure the payment of the said notes, immediately called upon the drawer and presented the said notes and requested him to secure the amount; that Shufelt admitted his indebtedness and consented to give a judgment for the debt and to pay the same as soon as he received the avails of his farm which he had contracted to sell; and that a bond and warrant were thereupon given for the amount, upon which a judgment was entered in the supreme court. These defendants also denied all knowledge of the consideration of the several notes for which such judgment was given. They likewise denied any information on the subject, except from the subsequent allegations and pretences of the defendant J. Shufelt. And they therefore stated it as their belief, and insisted, that the notes were given upon a good and valid consideration ; and that the judgment was a valid and available lien, in favor of the estate of the decedent, not only as against the defendant therein but also as against the complainant as a subsequent incumbrancer.
    J. Shufelt the mortgagor suffered the bill to be taken as confessed against him. And the complainant having filed a replication to the answer of the- other two defendants, examined him as a witness to prove the allegations in the bill -as to the consideration of the notes for which their judgment was given ; although they objected to the witness as incompetent. Upon his testimony the vice chancellor decided and decreed that the judgment of the administrators was not a preferable lien upon the mortgaged premises, except as to the sum of $185 ; and that the residue of the said judgment should be postponed until the complainant’s mortgage was satisfied ; which mortgage, except as to the $185, was declared and decreed to be a prior lien upon the mortgaged premises, in the 'same manner as . if it had been duly registered before the docketing of such judgment. He also directed a reference to compute the amount due upon the complainant’s mortgage, and reserved all further questions and directions until the coming in and confirmation of the master’s report. From this decree Mynderse and Van Yranken, the administrators, appealed.

      A. L. Linn & A. C. Paige, for the appellants.
    John Shufelt was an incompetent witness for the complainant, being interested in the event of the suit. (5 Paige, 632. Hoffm. Ch. Pr. 485. 1 Cowp. 198.) Barent I. Mynderse was a competent witness in behalf of the estate of Aaron Mynderse deceased, being only a formal party as administrator and having no personal interest in the suit. (5 Paige, 638.)
    The complainant having examined John Shufelt as a witness can have no decree against him as to any matters to which he was examined, and therefore not against the other defendants ; as the foundation of the relief sought against them is connected with the relief sought against him. The complainant being a third person, and a subsequent judgment creditor and mortgagee, cannot enquire into the consideration of the judgment given by John Shufelt to Barent I. Mynderse. (Cowp. 793. 2 W. Black. 1073. 12 John. Rep. 10, 11. 10 Id. 186. 6 John. Ch. Rep. 235: 5 Id. 569. 20 John. Rep. 668. 20 Id. 296. 2 John. Ch. Rep. 144. 9 John. Rep. 80. 1 R. S. 669.) John Shufelt himself, having voluntarily and without fraud or imposition confessed the judgment, can have no relief against it. He might have had against the notes, if he could have proved the illegality of their consideration. (5 John. Ch. Rep. 565, 566, 145.) This illegality he could not (if Aaron Mynderse had been living) have compelled Mynderse to discover, as the discovery would have subjected him to a penalty or forfeiture. (1 R. S. 669, § 26, 29 to
      32. 3 Paige, 528. 2 Bridg. Dig. tit. Gaming. 4 Idem, title Disc. § 36; 38, 39, 41, 62. 2 Idem, title Forfeiture, § 3. 11 Vesey, 296, 373.)' John Shufelt would have had no remedy by a summary application to the equitable powers of the supreme court. He would have been compelled to resort to chancery for relief. And when there he could not have compelled Aaron Mynderse to discover the consideration. (11 Wend. 335. 3 Paige, 532. 5 John. Ch. Rep. 137.) What John Shufelt could not effect, cannot thus indirectly be effected, by his creditor making him the witness to prove the consideration. John Shufelt, if he could have proved the consideration, could have had no remedy against Aaron Mynderse, as they were in pari delicto—the law leaving them as it found them, not aiding either. (12 John. Rep. 11. Cowp. 2007. 11 John. Rep.' 23.) The complainant has no equity as against the judgment ; as his debt has been contracted, or the greater part of it, since his knowledge of the judgment. (5 John. Ch. Rep. 565.) The judgment was not given to defraud creditors, and therefore it cannot be set aside at the instance of a creditor. A portion of the mortgage debt is secured by a judgment, and no execution has been issued and returned thereon. The complainant is therefore precluded from the relief he seeks. (2 R. S. 118,119, § 161, 162. 4 Paige, 549.)

      A. Vanderpoel 8f W. H. Tobey, for the respondents.
    The judgment to Barent I. Mynderse, collector, &c. of the estate of A.,Mynderse, deceased, ought to be postponed to the lien of the complainant’s mortgage, and the mortgaged premises ought to be relieved from the lien created thereby ; because, with the exception of $190, it was given for a consideration prohibited by statute (lottery tickets,) to which a penalty was affixed and was therefore void. (3 Paige, 320. 1 R. S. 665, 6, § 26, 29, &c. 14 John. Rep. 273, 290. Fonb. Eq. 191, note. 1 Com. on Con. 28. 2 Will. 351. Fonb. Eq. 193, note. Doug. 614, 716.) The defendant, John Shufelt, - not being interested in the matter for -which he was called, and to which he was examined, was a competent witness. (2 Vesey & Beam. 401. Hoffman's Master, 18.) The defendant, Barent I. Mynderse, being an administrator, and being interested to swell the assets, is not a competent witness, and his deposition ought, therefore, to be suppressed. (2 Eq. Dig. 1001. 5 Mad. 353. 1 Ball. & Beat. 96.) The $170 of prize money ought to be applied to the payment of the $190, which was the only portion of the consideration of the judgment that was legal. The residue of the consideration of the judgment was for lottery tickets, the sale of which was not only not authorized, but was expressly prohibited by the laws of the state, and declared a nuisance. (9 Cowen, 775—Note, as to application of general payments.) Should the prize money ($170,) be applied to that portion of the judgment which was founded upon a good and valid consideration, then there was only about the sum of $20 due upon the judgment when it was entered; and the complainant tendered much more than was actually due, as he tendered $185. The objection that a judgment has been taken for a part of the mortgage debt and that no execution has been issued and returned thereon, is not well taken. The mortgagor alone can take this objection. The mortgage wras given subsequent to the judgment, and therefore the statute does not apply. The complainant’s hill is filed to obtain relief against an incumbrance improperly or fraudulently created ; and in such a case it is not necessary that an execution should be sued out previous to the filing of the bill. (2 R. S. 191. 4 Paige, 549. 3 Id. 320.)
   The Chancellor.

It is not important in this case, to examine the question whether Mynderse, one of the administrators, was a competent witness to sustain the validity of the judgment due to the estate which he represented; as the only material fact to which his testimony related was fully proved by Mr. Linn. This last witness establishes the fact that the defendant B. I. Mynderse, as the special administrator, had in his possession four promissory notes given by J. Shufeit to the decedent 5 and that Shufeit, upon being applied to by such admnistrator to pay or secure those notes, voluntarily consented to give the judgment in question for the amount of them. Upon that proof, which is undisputed, the important question arises whether a subsequent mortgagee, or incumbrancer, of the judgment debtor can call in question the validity of that judgment as a legal lien upon the real estate of the defendant therein. And the conclusion at which I have arrived upon that point, renders it also unnecessary for me to decide whether the defendant J. Shufeit, the mortgagor, who had suffered the bill to be taken as confessed, was a competent witness for his father, the complainant, to prove the allegations in his bill as to the illegality of the transactions which constituted the consideration of the notes for which this judgment was afterwards confessed.

There is no pretence in this case that the judgment was given in consequence of any fraudulent or collusive agreement between the special administrator and the defendant in the judgment, for the purpose of depriving the creditors of the latter of the means of recovering their just debts. Nor is there any evidence to show that the special administrator knew, or had any reason to suppose, at the time he obtained the judgment for these notes, that they were not legally due and collectable. Neither is there any allegation in the complainant’s bill, that any part of the debt, for which the complainant’s mortgage was given, was due from his son at the time the latter confessed the judgment in favor of the special administrator; or that the son was not at that time able to pay all his debts, in addition to this amount claimed to be due to the estate of A. Mynderse. And it appears, from the testimony, that the complainant took the mortgage with full knowledge of the existence of the judgment given to the special administrator ; and that the mortgage money, exclusive of that which was already secured by the bond and warrant of the 26th of February, 1835, was advanced after he had such knowledge. It is impossible therefore for any one to wink so hard as not to see that the advance of this additional $1200, and the giving of a mortgage sufficiently large to cover the whole value of the mortgaged premises exclusive of the previous mortgage thereon, was a mere device to enable the complainant to bring this suit for the purpose of contesting the validity of the judgment belonging to the estate of A. Mynderse ; the payment of which the defendant in the judgment could not successfully resist by a suit in his own name. In other words, it was an indirect purchase, by a stranger to the transaction, of the privilege of bringing a suit in this court to set aside or overreach this judgment, by the use of the testimony of the party against whom the judgment was recovered. And I doubt whether a court of equity ought to lend its aid to carry into effect such an arrangement, under any circumstances.

In the ordinary case of the giving of an usurious mortgage, by the owner of the mortgaged premises, the statute having declared the usurious security void, the owner of the premises of course has the right to sell his property, or to mortgage the same, as though such void mortgage had never existed. And the purchaser, in such a case, necessarily acquires all the rights of his vendor to question the validity of the usurious security. For if the original mortgagor had not that right, the premises would, to a certain extent, be rendered inalienable in his hands ; notwithstanding the incumbrance thereon was absolutely void as to him. He may, however, if he thinks proper to do so, elect to affirm the usurious mortgage, by selling his property subject to the payment or to the lien of such mortgage. And the purchaser, in that case, takes the equity of redemption merely, and cannot question the validity of the prior mortgage on the ground of usury. (Green v. Kemp, 13 Mass. Rep. 515. Bridge v. Hubbard, 15 Idem, 103.) Butin the case of a judgment, like the present, which is a valid and subsisting debt against the defendant, and a lien upon his real estate, at least until he thinks proper to institute some legal proceedings to set aside such judgment, there is a manifest impropriety in permitting every voluntary purchaser, or mortgagee, of any portion of the property upon which such judgment is a lien, to file a bill in his own name to impeach the consideration of that judgment. My learned predecessor Chancellor Kent, in the case of French v. Shotwell, (5 John. Ch. Rep. 567,) came to the conclusion that a subsequent purchaser, who was aware of the existence of such a judgment at the time of his purchase, was not authorized to call the judgment in question where the judgment debtor himself did not think proper to do so. He says, “ the judgment precludes on general principles ¿ for the purchaser voluntarily comes in under the judgment pro bono et malo ; and except in the special case in which the judgment was confessed collusively and by a corrupt agreement to defraud some subsequent purchaser, a case hardly to be supposed, he must take the lien as he finds it, and has no business to interfere with the contracts of other people.”

I am aware that the very distinguished counsel, the late Mr. Henry, who filed the bill and argued the case of French v. Shotwell, was not satisfied with the decision of the chancellor upon the plea in that case. And the reporter erred in supposing that there was an appeal from the chancellor’s decision upon the rehearing of the plea ; and that such decision was affirmed by the court of dernier resort, as is stated in the report. (See 20 John. Rep. 668.) It appears from the printed case, and from the opinion of the then chief justice delivered in the court for the correction of errors, both of which I formerly had occasion to examine, that the only appeal was from the decretal order of August, 1822, overruling certain exceptions to the defendant’s answer. (See 6 John. Ch. Rep. 235.) And the complainant having lost the right to appeal from the order allowing the plea, by his neglect to enter his appeal within fifteen days, his counsel attempted to review the decision of the chancellor upon the plea, under the appeal from the subsequent order of August, 1822. But the chief justice stated distinctly, in his opinion, that the court for the correction of errors could not upon that appeal examine the correctness of the plea ; and that the appellate court was confined to the question arising on the master’s report upon exceptions to the answer. I will not therefore say it is conclusively settled that a subsequent purchaser, or mortgagee, can in no case call in question the validity of a judgment voluntarily confessed by the vendor or mortgagor under whom he claims title. But in a case like the present, where an individual apparently indebted to the estate of a deceased person, upon being called on by the representative of the decedent to pay or secure the debt, voluntarily confesses a judgment for the amount, without intimating that he has any legal or equitable defence to the debt or any part thereof, I think the debtor himself is estopped from questioning the validity of such a judgment, in any court, unless he can show that some mistake has occurred ; in the same manner as he would be estopped if the judgment had been recovered against him in an ordinary suit at laxv for the collection of the debt. This bears no resemblance to the common case of giving a bond and warrant to secure the performance of an agreement for an usurious loan, or where the judgment itself constitutes a part of an immoral and void agreement; in which cases this court, as well the court of law in which the judgment has been entered, may set the same aside upon equitable principles. And if J. Shufelt himself would not have been authorized to file a bill in this case to set aside the judgment, on account of the alleged illegality of the consideration of the notes which constituted the original indebtedness, a subsequent grantee or mortgagee of the property upon which that judgment is a lien certainly cannot question the validity of such lien.

I am also inclined to think there is not sufficient on the face of the complainant’s bill to shoxv that the consideration of the notes for which the judgment was confessed was illegal. For it is not alleged that the foreign lottery tickets, for which those notes were given, were sold in this state, or that A. Mynderse, at the time of such sale, resided or kept his lottery office in the state of New-York. But this is a mere technical defect; as the proof shows that he resided at Schenectady, and the sales of the lottery tickets were unquestionably made there, from whatever place the vendor might have procured them.

There is, however, a substantial and fatal defect in the complainant’s bill, considering it as a bill for the foreclosure of the mortgage given to him by his son. For it appears from the bill itself, as well as from the evidence in the case, that the complainant has recovered a judgment in the supreme court for more than two-thirds of the debt secured by the mortgage. And the statute is imperative, that, upon a bill of foreclosure, if it appears that any judgment has been obtained in a suit at law for the moneys demanded by such bill, or any part thereof, no proceedings shall be had in such case unless to an execution, against the property of the defendant in such judgment, the sheriff shall have returned the execution unsatisfied, in whole or in part, and that the defendant has no property whereof to satisfy such execution except the mortgaged premises. (2 R. S. 192, § 146, new ed. § 162.) The judgment of the complainant, which was entered in this case in February, 1835, is a judgment for a part of the moneys demanded by him in this bill; for the recovery and satisfaction of which moneys he seeks a foreclosure and sale of the mortgaged premises. In such a case, as this court has recently decided, if the fact of the recovery of the judgment appears in the bill, the complainant must go still further and show that he has exhausted his remedy at law, upon the judgment; or the defendants in the foreclosure suit may demur to the bill on that account, or they may urge that objection in their answer, to prevent a decree of foreclosure. Or, if this objection does not appear upon the bill, and the complainant has falsely alleged that no proceedings at law have been had, the defendant may plead the recovery of such judgment in bar of the foreclosure suit. (The North River Bank v. Rogers, 8 Paige’s Rep. 648.) And if the fact of the recovery of such judgment appears in the bill itself, the court cannot make a decree of foreclosure until the execution has been returned unsatisfied ; although the defendant has suffered the bill to be taken as confessed against him.

For these reasons the decree appealed from must be reversed, with costs to the appellants. And the bill, so far as it seeks to call in question the validity of their judgment against the mortgagor, or to affect the priority of the lien thereof upon the mortgaged premises, must be dismissed absolutely and unconditionally, with costs to them. But so far as it seeks a foreclosure of the complainant’s mortgage, it must be dismissed as to all the defendants ; without prejudice to his right, after he shall have exhausted his remedy at law upon his judgment for the recovery of the part of the mortgage moneys included therein, to file a new bill to foreclose and obtain satisfaction of his mortgage out of the mortgaged premises, subject to the prior lien of the appellants thereon, by virtue of their judgment and the lien of the mortgage to the defendant Mynderse upon the same premises.