text:
    In the matter of Willoughby, a lunatic.
    Where the wife of a lunatic, as the committee of his person, applied for an allowance, out of his estate, for the support of her daughter by a former marriage, upon the ground of an alleged ante-nuptial agreement of the lunatic to sppport such daughter; Held that the alleged agreement, if made, being by parol merely, was not binding on the lunatic or his estate.
    And it not appearing to the court to be probable that the lunatic, under the circumstances of his estate, would have continued to support his wife’s daughter, if he had retained his reason and the control of his own property; Held that it was improper to make an allowance for that purpose out of his estate, in the hands of the committee.

      Held also, that the court of chancery had the power to direct an allowance out of the income of the estate of the lunatic, for the support of his step-daughter, if the income of the estate was more than sufficient for the support of the lunatic, and of the members of his family who had a legal claim upon him for support; upon its being established, to the satisfaction of the court, that the lunatic himself would have provided for her support, if he had continued legally competent to manage his own affairs.
    Where the income of the estate of a lunatic is more than sufficient for the support of himself, and for the support of those members of his family for whom he is legally bound to provide, the court of chancery may«make an allowance, out of such income, to his near relatives who are in need of assistance.
    It' is a matter of course to make such allowance in favor of the children, or other descendants of the lunatic, who will inherit his estate in case of his death, and where there is but little or no hope of his recovery.
    But it seems that, in case of such an allowance, adult children in whose favor it is made, and who are competent to support themselves, will be required to stipulate that the amounts advanced to them respectively, under the order of the court, shall be brought into hotchpot, in the distribution of the lunatic’s estate, upon his death, if any part of such estate .shall come to them under the statute of distributions.
    The court, in all such ca?es, acts for the lunatic, in reference to his estate,, as it supposes the lunatic himself would have acted, if he had been of sound mind.
    UpoN the execution .of a commission of lunacy, W. Willoughby was found to be a lunatic; and his wife was appointed the committee of his person only, and W. W. Sweney was appointed the committee of his estate. An order was also made referring it to a master to inquire and report what sum was proper to be allowed to the wife of the lunatic, as the committee of hig person, for his and her support; in addition to the use of his dwelling house and appurtenances. The wife npw presented a petition to amend the order of reference, so as to. include an allowance for her daughter by a former husband; the lunatic having no children or descendants, find his next of bin being brothers and sisters, and children of deceased brothers. The claim of the petitioner was founded upon an alleged ante-nuptial agreement of the lunatic, that the daughter of the petitioner, who was twenty-one years of age, should reside in his family and be supported by him, The court having required notice of the application to be given to the committee of the estate, and to one of the nephews of the lunatic, upon whose petition the inquisition had been found, the latter appeared, to oppose the application.

      H. H. Cozzens, for Mrs. Willoughby.

      D. Burwell, for J. Willoughby, the nephew.
   The Chancellor.

There is no legal or satisfactory evidence to establish the supposed ante-nuptial agreement, even if such an agreement by parol would be binding upon the lunatic or his estate. Again, the statute is imperative that every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry, shall be void, if not in writing and subscribed by the party to be charged therewith. (2 R. S. 135, § 2.) No claim for the support of the step-daughter can therefore, be founded upon the supposed agreement stated in the petition; and the lunatic is not bound to support her in any way. The question, then, arises whether the court ought to make the order asked for, under the circumstances of this case. In deciding that question, it is not proper to take into consideration the contested fact, that the services of this young lady are useful or necessary, as an assistant in the family. That is a proper subject for consideration by the master, under the original order of reference. For, if it is necessary that she should be employed as an assistant to take care of the lunatic, so as to render his situation more comfortable than it would otherwise -be, the master will of course make such aii allowance, for the services to be rendered by her, as similar services which she has heretofore performed were actually worth.

How far the court ought to go, in making provision, out of the estate of a lunatic, for the maintenance of the relatives of such lunatic who have no legal claims upon him or his estate; has never yet been determined. It has frequently been decided, however, that where the income of the estate is large; so as to be much more than sufficient for the support of the lunatic and of those members of his family for whom he is bound by law to provide, the court may make an allowance; out of such income, to his near relatives who are in need of assistance. This is done almost as a matter of course in reference to the children of the lunatic, or other descendants who are presumptively entitled to his estate in case of his death; and where there is but little or no hope of his recovery. I know such orders have been made by this court, within the'last fifteen years, in three oí four different cases; where the estates were large and the incomes much more than sufficient for the support of the lunatics, and of all those who had a legal claim upon such lunatics for support and maintenance. But my present recollection is, that in all those cases, I required the adult children, who were competent to support themselves, to give a stipulation that the amounts advanced to them respectively should be brought into hotchpot; upon the death of the lunatic; if any part of his personal estate should come to them under the statute of distributions. This principle, of considering the allowance as an advance, to be brought into hotch-pot in distribution, has not, however, been extended to children of the lunatic who were sickly or decrepit, so as to give them a special claim upon the estate of the lunatic, for a support. The court, in such cases, acts for the lunatic, and in reference to his estate, as it supposes the lundtic himself would have acted if he had been of sound mind; (See Ex parte Whitbread, 2 Mer. Rep. 97. In Re Feak, Shelf. on Lun. 160.) Upon the same principle, Lord Lyndhurst made an allowance, out of the estate, for the education of a natural child of the lunatic. (In Re Jodrell, Shelf. on Lun. 161.) And in a more recent case, where the only next of kin of the lunatic, were two nephews and a niece, Lord Cottenham made an order for an allowance to the two nephews, for their better education and support; the niece consenting to the same. (In Re Blair, 1 My. & Cr. Ch. Rep. 300.) The lord chancellor, in that case, however, áaid he entertained great doubts with respect to the power of the great seal to grant, and with respect to the propriety of granting, allowances to relatives of lunatics for whom the lunatic was not legally bound to provide; and that the practice which had been introduced by Lord Eldon; and subsequently 'followed, was one which could not be regarded with too much caution. But as there was no probability of the recovery of the lunatic, in that case, and the income of the estate was three times as much as was necessary for the lunatic’s support, his lordship made the allowance asked for. And in the case of The Earl of Carysfort, (Craig & Phil. Ch. Rep. 76,) which came before Lord Cottenham, four years afterwards, he so far overcame the scruples which he had previously entertained, as to allow a retiring pension, out of the income of the estate,, to an old personal servant of the lunatic, who had attended upon him for more than twenty years; being satisfied that thé allowance was one which the earl himself would have approved, if he had been capable of acting himself.

In the case under consideration, if the income of the estate was much more than could be expended for the comfort and support of the lunatic and his wife, in the style in which they ought to be supported; I should not doubt the power of the court to make the allowance asked for; were it perfectly certain that the lunatic would make a provision for the support of this young lady, if he was legally competent to do so, considering the heavy charges to which his estate has been and may hereafter be subjected in consequence of these proceedings. Under the circumstances, however, Í am hot satisfied that he would consider her as having such a claim Upon his bounty, if he was restored to his reason so as to be capable of acting with sense and discretion. From the affidavits, read in opposition to this application, it appears that he did not consider her as entitled to a support from him, or as standing in the situation of an adopted child. There is also reason to suppose that she has some property of her own; which will be sufficient for her support, with the addition of what she can obtain by her own exertions. The application must therefore be denied. And as J. Willoughby was in the discharge of his duty in opposing this application, for the benefit of the lunatic’s estate, his taxable costs must be paid by the committee, out of the estate of the lunatic in his hands; such costs to be taxed, upon due notice to the committee.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Colegrove and others vs. Horton.
    On an application to the surrogate, by a person interested in the estate of the decedent, to compel the executor to give security, upon the ground of his pecuniary irresponsibility, the petition must state such particulars as to the situation and value of the estate of the decedent, and the pecuniary circumstances of the executor, as prima facie to render it probable that the estate of the testator will not be safe in the hands of the executor.
    The petition is insufficient where the petitioner only states therein generally, in the language of the revised statutes, that, according to his information and belief, the circumstances of the executor are so precarious as not to afford adequate security for the due administration of the estate.
    Where the executor, on the return of the citation, answers the petition and denies the allegations therein, upon oath, the petitioner must produce proof to establish the truth of such allegations ; and if he fails to do so, his petition should be dismissed.
    The surrogate cannot require the executor to prove his responsibility, before any doubt is raised, as to such responsibility, by proof introduced by the petitioner.
    The surrogate, on such an application, should give to the executor an opportunity to put in a sworn answer to the petition.
    This was an appeal from ail order of the surrogate of Putnam county, requiring the appellants to give security for the faithful discharge of their trust, as executors of the estate of J. Colegrove, deceased. The respondent was a creditor of the testator; and as such, presented a petition to the surrogate, stating, among other things, that by the will of the decedent, who died in-December 1841, seized and possessed of considerable real and personal estate, the appellants were appointed his executors; that they were by such will authorized to sell all the real and personal estate of the decedent, and to pay his debts; and that • the circumstances of the executors were such as not to afford an adequate security, for the due administration of the estate. The surrogate thereupon cited the executors to appear and show cause why they should not give security, or be superseded; and also render an account of their admiriistration of the estate. Upon the return of the citation the parties appeared, and the petitioner declined offering any evidence or proof — insisting that it was the duty of the executors to prove their responsibility; and the surrogate so decided. One of the executors was then sworn and examined by consent, as to the responsibility and pecuniary resource's of himself and his co-executor. He testified that he was the owner of real and personal estate worth between five and six thousand dollars more than his debts, and that his co-executor was worth five or six hundred dollars in personal property; exclusive of their interest in the real estate of the testator, of which each owned one-pinth. And a witness, who was a resident of the same place with the executors,- also testified that both were active business men ; and that one was reputed" to be worth from five to eight thousand dollars, and that the other was worth five or six hundred dollars in personal property. It was alsb admitted, before the surrogate; that the executors had properly disposed of all the personal property Of the testator, and had applied the same, together with all the rents and profits of the real estate, to the payment of his debts; that they had; in addition thereto, paid f>186 of their own moneys towards such debts; and that the real estate of the testator, which was unsold, was worth about $2650,- exclusive of a small incumbrance thereon.

      J. Holmes, for the appellants.

      C. Ga Nun, for the respondent.
   The Chancellor.

The surrogate was clearly wrong, in requiring the executors to prove their responsibility, before it was proved or admitted that there was any estate or property in their hands to be administered, or any thing alleged or proved on the part of the applicant, to raise a doubt as to their responsibility. Where a person interested in the estate of the decedent, seeks to obtain security from the executors, to whom probate of the will has been granted, it is not sufficient for him, in his petition to the surrogate, to state generally, in the language of the revised statutes, that, according to his information and belief, the circumstances of the executors are so precarious as not to afford adequate security for the due administration of the estate. But the petition should state such particulars, as to the situation and value of the estate of the decedent and the pecuniary circumstances of the executors, as prima facie to render it probable that the estate of the testator will not be safe in their hands. And if the executors, upon the return of the citation, answer the petition and deny the allegations therein, upon oath, the applicant must give some proof to induce the surrogate to presume those allegations are true. Here the petition was defective in this respect. For it did not state, even upon information and belief, the amount or value of the real or personal estate which had come to the hands of the executors, or that any thing remained in their hands to be administered; or any thing as to the situation, nature, or amount of their property. Nor did the petitioner allege that she believed the executors, or either of them, to be insolvent or deeply involved in debt. Under such circumstances, and in the absence of any proof in relation to the value of the estate of the testator, or of a want of pecuniary responsibility in the executors, the surrogate should have dismissed the application.

But, if the petition had been properly drawn, the surrogate should have given the executors an opportunity to put in a sworn answer to the same. In that case the allegations in the petition which were not denied, might have been taken as true, without further proof; and those which were put in issue by the answer, would have been the proper subjects of investigation and proof before the surrogate. Considering the examination of the executor in this case, as merely an answer to the general allegation in ' the petition, that the circumstances of the executors were so precarious as not to afford adequate security to the creditors of the estate, it was sufficient to render it necessary for the petitioner to give some evidence to sustain this suggestion in her petition. No such evidence, however, was produced; but on the contrary, the executors themselves produced evidence which was sufficient, pri-ma facie, to show their pecuniary responsibility was ample, if the weight of proof had rested upon them.

There is no pretence that either of the executors is insolvent, or is wasteful or extravagant; or is engaged in any speculation which will be likely to endanger the proceeds of the. real estate, of the testator, if they should sell such estate for the payment of debts, under the power contained in the will. The existence of such a power is stated in the petition, and is not denied by the executors, and, therefore, might be considered as admitted for the purposes of the application. It was admitted that all the personal estate had been properly administered, and that the executors had paid out a considerable amount of their own funds, in addition to the rents of the reafestate, towards tile debts. And if they sell the real estate, they will have in their hands the whole proceeds of that sale, in addition to the reputed property of both, which, in the aggregate, is more than $6000.' This amount of funds, in the hands of prudent and discreet men, as one, at least, of these executors is proved to be, affords all the security which can reasonably be required, that these executors will faithfully discharge their trust; by paying over to the creditors such part of the proceeds of the farm as they may be entitled to, when such farm shall have been sold.

The order of the surrogate, requiring the appellants to give security, must therefore be reversed. And the petition of the respondent must be dismissed with costs; including the costs of the executors on this appeal.


text:
    Johnson and others, adm’rs, &c. vs. Corbett and others.
    Where the decedent, at the time of his death, was seised of a large real estate, and had personal estate sufficient to pay his debts, exclusive of debts which were then fully secured by mortgages upon his real estate, and of one debt for the purchase money of land which- had not been conveyed to him by the vendor; and his personal representatives, after his death, paid most of the debts in full, except those charged upon his lands, and made some payments towards some of the latter class of debts, out of his personal estate; Held, that upon a final settlement of the accounts of the personal representatives, the surrogate ought not to allow the debts of the decedent secured by mortgages dpon the real estate which had descended to his heirs, to be paid pro rata with debts not thus secured, out of the proceeds of the personal estate.
    Where debts of the testator are secured by mortgage upon his real estate, the revised statutes make such real estate, in the hands of his heirs or devisees, the primary fund for the payment of such debts; and only the balance of the debt of each mortgagee, which cannot be collected by a foreclosure and sale of the mortgaged premises, is to be allowed, as a claim to be paid prd rata out of the proceeds of the testator’s personal estate.
    In such a case, if the mortgagee has received any part of His debt from the personal representatives, out of the proceeds of the personal estate is insufficient to pay all the debts, the amount thus paid to him, must be charged to him as a part of his distributive share of the personal estate, in the distribution thereof among théi creditors of the decedent.
    But where the personal representatives have paid td the mortgagee more titan his pro rata share of the personal estate, they cannot, ás against rfife other creditors, be allowed the surplus thus paid to the mortgagee.
    Where a mortgage debt is primarily chargeable upori mortgaged premises which are sufficient to pay such debt, in the hands of the heirs or devisees of the decedent, if the mortgagee, to accommodate such heirs or devisees, delays the foreclosure of his mortgage, until the lands fall in value, and become insufficient for. that purpose, and the personal representatives of the decedent, in the mean time, pay out the whole personal property, the mortgagee cannot call on them to pay the deficiency of the proceeds of the mortgaged premises to satisfy thd balance due upon the mortgage.
    Upon a contract by the decedent for the purchase of land, where the land has not been conveyed to him, nor the purchase money paid, the land contracted, for -is, iii equity, considered as real estate, and as belonging to the heirs, of the. decedent. And the unpaid purchase money is primarily chargeable upon his personal estate, and is to be paid by his executors or administrators, for the benefit of such heirs-.
    For the purpose of ascertaining the pro rata dividends of the creditors, upon, the final settlement of the. accounts of the executors or administrators of the decedent, all the debts due to creditors of the estate, which were not secured by mortgage upon real property, nor entitled to a preference in payment, should be added together; including therein the balances of debts not fully secured by mortgage. And the per centage which the personal property will pay of that amount should be computed ; although some of those debts may have been previously paid by the personal representatives of the decedent, out of the personal estate. From the pro rata dividend, for each debt, when thus ascertained, there should be deducted the sum or sums already paid thereon by the executors or administrators; and the balances of such pro rata dividends should alone be charged to the personal representatives, on account of the estate of the decedent which came to 'their hands.
    Where the decedent owes a debt to a creditor who is indebted to the decedent in a larger amount, the debt of the testator should, not be added to his other debts in computing the pro rata dividend; but it should be offset against the larger debt due the decedent; and the balance of such larger debt, only, should be charged to the personal representatives,* in their account of the estate which has come to their hands. And where'the smaller debt is due to the decedent, it should be deducted from the larger debt of his creditor; and the balance only should be brought into the account, as the debt of the decedent upon which the pro rata dividend is to be computed.
    When an executor or administrator, by mistake, receives money not due to the estate of the, decedent, he should not be charged with it in the settlement of his accounts; as he is bound to refund it to the person who paid it to him by reason of such mistake.

      Miter, where the person who paid the money has relinquished his claim to it, after being informed of such mistake.
    Rent due from the testator upon a church pew, is not a preferred debt, under the provisions of the revised statutes; unless it is r.ent due upon a term of years in such pew, which belongs to the executors or administrators as a part of the personal estate of the testator.
    The amount previously paid by the executors or administrators, to a creditor, towards ■ his pro rata dividend upon a debt actually due from the decedent, should be allowed to them upon th'c final settlement of their accounts ; although such creditor neglects' to come in and prove his debt, and to claim a dividend thereon, upon such final settlement.
    The widow is entitled to her reasonable sustenance, out of the estate of her deceased husband, during her quarantine, whether the estate of the decedent is solvent or insolvent.
    But no provision is made by law for the sustenance of the children of an insolvent decedent, out of his estate; the statutory provision for sustenance being confined to the widow, and to the exempt articles which are given to her for that purpose.
    An administrator, who suffers or permits his co-administrator to misapply the funds of the estate, where he has the power to prevent it, is liable in equity for such misapplication ; if the amount misapplied cannot be collected from his co-administrator.
    But where a misapplication of the estate is by applying the personal estate to the satisfaction of debts chargeable upon the real estate belonging to the heirs at law of the decedent, the administrator who is compelled to pay the amount, so misapplied, to other creditors of the decedent, is entitled to a renjedy to recover the same out of the real estate in the hands of the heirs.
    This was au appeal by the administrators of the estate of Lyman Betts, deceased, from the sentence and decree of the surrogate of the county of Kings, upon the final settlement of the accounts of the appellants. Lyman Betts died in 1835, seised and possessed of a large real and personal estate in Brooklyn; where he was domiciled at the time of his death. The amount of his personal estate was between fifty and sixty thousand dollars. And it was nearly or quite sufficient to pay all his debts, exclusive of those debts, which were secured by mortgages upon real estate, and of one debt which was due upon a contract for the purchase of lands which had not been conveyed to him by the vendor. The lands mortgaged being then of sufficient value to pay all the debts charged thereon, and the property of the decedent, including his real estate, being considered much more than sufficient to pay all his debts, the acting administrator paid most of the debts which were not charged upon real estate, in full. Among other mortgages, there was one to A. Hamilton, upon three lots of land, upon which the administrators paid the interest for eighteen months. When that mortgage became due, it was foreclosed; and upon the sale, in February, 1839, there was a deficiency of about $1600. The surrogate, upon the statement of the account, allowed this deficiency as a debt due from the estate, and as entitled to its pro rata dividend, out of the assets in the hands of the administrators. S. Cornell had a bond and mortgage, upon sixteen lots in the village of Brooklyn; which lots at the death of the intestate, and at the settlement of the account of the administrators, were worth much more than the whole amount of the mortgage, including the necessary expense of foreclosing the same. But the surrogate allowed the mortgagee to prove, as a debt against the personal estate, the amount of the interest due at the time of accounting, and decreed the payment of a pro rata dividend thereon; although no claim had been presented, under the order of the surrogate requiring creditors to exhibit their claims. Bradley, the president of the Patriotic Bank, held a second mortgage upon the same sixteen lots, secured by a bond. That bond and mortgage were assigned to him in 1838; upon which bond and mortgage the acting administrator had made two semi-annual payments of interest, previous to the assignment. The surrogate allowed the whole amount remaining due'upon this bond and mortgage, at the settlement of the account, as a debt to be paid pro rata out of the personal estate; without reference to the value of the land upon which it was a lien. No notice of the claim of the mortgagees under this mortgage had been presented to the administrators, under the surrogate’s order. Corbett held a third mortgage upon the same sixteen lots, to secure the payment of two notes given by the decedent; upon which notes f1000 had been paid by the administrators. No notice of this claim had been presented, under the surrogate’s order. But the whole balance remaining due thereon was allowed, as a debt against the estate, to be paid pro rata out of the personal estate in the hands of the administrators. The widow of the decedent, who was administratrix, claimed an allowance, out of the estate, for her reasonable sustenance ; which claim was not allowed. The decree directed the several amounts due to the creditors whose claims were allowed by the surrogate, to be paid by all the administrators jointly, within ninety days; including the whole amount due to" the mortgage creditors for their respective shares of the mortgage debts, Various errors also occurred in the amount charged to the administrators, and in the allowances to them for preferred claims, &,c. and in computing the allowances to the creditors. As to all which matters, the administrators appealed to the chancellor, from the decree of the surrogate.

      J. A. Lott & G. Wood, for appellants.

      B. W. Bonney, for Hamilton and Bradley, respondents.
    N. B. Morse, tor the children of the decedent.
   The Chancellor.

The objection that the debts of the mortgagees were not presented to the administrators, during the time of the running of the notice for creditors to exhibit their claims, under the surrogate’s order, is not well taken. The object of the statute is to compel the creditors who have debts due from the estate, to present them to the executor or administrator for allowance or rejection, so that he may know” what debts exist, and the validity thereof. And where, as in this case, the debts have been actually presented, and acknowledged by the executor or administrator, before the making of the surrogate’s order for notice to the creditors to exhibit their claims, it cannot be necessary that the creditors should present them-again for allowance. Here the acting administrator had recognized each of the debts due upon the bonds and mortgages, and had made payments of interest thereon; and upon the debt of Corbett he had also paid a part of the principal moneys. And in his examination, he states that he knew the amount was due to Corbett, and that it was also secured by the mortgage. The mere fact of knowledge on the part of the administrator, that a creditor held a bond against a decedent, which was secured by mortgage upon his real estate, would not of itself be sufficient to prevent the necessity of exhibiting his claim to the administrator. But where the administrator admits the validity of a debt against the personal estate, by paying the interest thereon from time to time out of the assets in his hands, it is tantamount to a formal presentment of the evidence of such debt, and an admission of its correctness, after a publication of the notice to creditors under the surrogate’s order.

But the surrogate was clearly wrong in allowing inortgage debts of the decedent, which were fully secured upon the real estate which had descended to his heirs, to b.e paid absolutely and unconditionally, out of the personal estafe; pro rata with the debts of creditors, whose claims were upon the personal estate only. The revised statutes expressly charge the mortgage debts upon the mortgaged premises, in the hands of the heir or devisee, as the primary fund. (1 R. S. 749, § 4.) The object of the statute was not to deprive the mortgagee of any part of his debt, where the real estate, upon which it is a specific lien, is insufficient to pay the whole of the debt; including the necessary ex pense of foreclosure. All he can ask for, however, either at law or in equity, under the provisions of the revised statutes, is that the balance of his debt, beyond the value of the real estate upon which it is a lien, shall be paid out of the personal estate pro rata with the claims of other creditors. And that pro rata allowance should not be computed upon the whole mortgage debt, but only upon that part of it which is equitably chargeable upon the personal property. In other words, so much of the debt as can be raised out of the mortgaged premises, is to ,be considered as if it had been paid by the heirs at law; or by the decedent before his death. And the mortgagee is to come in, pro rata with the other creditors as to the residue of the debt; including what has already been paid by the administrators, out of the personal estate.

Upon this- principle, the decree in favor of Hamilton is for too -much; instead of being for too small a sum; as he contends in his answer to the petition of appeal. For, although the surrogate has very properly made a deduction of the three several payments of interest, for the purpose of ascertaining the pro rata allowance upon the balance if all the allowances to other creditors are right, he seems to have forgotten that Hamilton bad actually received from the administrators more than his pro rata proportion of such interest; and that the difference, between what was really paid and what he was entitled to pro rata, should have been credited to them, towards his pro rata ^proportion of the residue of his debt, which was not raised out of the mortgaged premises. The same mistake has been made by the surrogate in respect to the two payments of interest, of $180 each, which were paid by the administrators, for interest upon the Bradley mortgage, in November, 1835, and May, 1836, before that mortgage was assigned ; even if Bradley, the assignee, was entitled to a pro rata allowance upon the whole balance of the mortgage debt, without reference to the value of the real estate upon which that mortgage is a lien.

There is not the least doubt, from the testimony, that the mortgaged premises are, and always have been, more than sufficient to pay the whole of Mrs. Cornell’s first mortgage upon the sixteen lots, and the accruing interest', and the' costs of foreclosure ; if she had thought proper to foreclose such mortgage within a reasonable time after it became duo. Her claim upon the personal estate should therefore have been wholly excluded, in making the pro rata dividend among the creditors who had claims upon the personal estate only. I think the evidence also shows that such real estate, upon which Bradley holds the second mortgage, is also sufficient to pay that mortgage, and the prior incum-brance, if he had proceeded to foreclose his mortgage within a reasonable time after it became due. The amount of his bond and mortgage, therefore, should have been left entirely out of the case, upon making the pro rata allowance to creditors who had liens upon the personal estate. And for the same reason, the administrators, in case of a deficiency of assets to pay other creditors, ought not to be allowed for the interest paid upon that mortgage, nor for interest -paid upon Mrs. Cornell’s mortgage; both of which debts were fully secured upon real estate. The computation, between the administrators and other creditors, should have been made in the same manner as if that interest had not been paid. And the administrators must look to the heirs at law, and to the widow, who have received the rents and profits of the mortgaged premises since the death of the intestate, for a refunding of those payments of interest, which have been improperly made out of the personal property of the decedent.

Even if the real estate was not sufficient to pay any part of the third mortgage, to Corbett, the surrogate has made a mistake in computing the amount of Corbett’s pro rata share of the personal property. For, to ascertain Corbett’s share, the surrogate should have taken the whole of his debt, including the $1000 paid by the administrators, in June, 1836, and should have made a pro rata allowance upon the whole, as his share of the personal estate. And then the administrators should have been credited with the $1000; as so much paid to him on account of such share.

I am satisfied, however, from the evidence, that if Corbett had proceeded to foreclose his mortgage immediately after the last payment became due, on the first of May, 1836. the real estate, upon which his mortgage was a lien, would have produced sufficient to pay the amount then due to him, together with both the prior incumbrances, and the expenses of the foreclosure and sale. For, with ordinary vigilance, the property could have been broüght to a sale prior to the depression of real estate; which depression commenced with the financial embarrassment of the succeeding yeal. I have no doubt that this mortgagee, as well as the others, acted from the best of motives in not pressing the foreclosure of his mortgage to the injury of the heirs of the decedent ; as property was then supposed to be rising in value. But it must be recollected that the administrators were also acting upon the same mistaken supposition, that the decedent would have ample property to pay his debts, and leave a large surplus for the heirs at law. There is no good reason, therefore, why the mortgagees who have waited until the mortgaged premises had so much fallen in value; to accommodate the heirs and save them from loss, should throw the whole loss upon the administrators ; who, in the meantime, had paid out the whole personal property for the payment of other debts, knowing that the real estate was then sufficient to pay the debts charged thereon. If it should unfortunately happen, that' the real estate does not produce enough to pay the balance due upon Corbett’s mortgage, the mortgagee must look for payment to the other real estate, if any there is; in the hands of the heirs at law ; for whose benefit aloné the delay in foreclosing the mortgage could-, in any event; have operated. The administrators must of course look to the same real estate for remuneration for the $1000 paid out of the personal estate towards this mortgage. For that sum must be deducted from the gross amount of debts chargeable Upon the personal estate, as between the administrators and the other creditors.

Neither party makes any complaint as to the decision of the surrogate; in relation to the payment of interest on the mill pond lot, except as to the deduction pro fata; nor is there any proof as to the value of that property. In equity, upon such a contract, the land which the decedent had contracted to buy but which had not been conveyed, would be considered as real estate belonging to the heirs at law. And as between themand the personal representatives, the balance due for the purchase money would be a charge upon the personal property of the decedent. These partial payments should, therefore, have been allowed in full. But as the vendor has made no claim upon the administrators, beyond the amount he has received from'them for interest, I presume that he has elected to look to the real estate, in the hands of the heirs, but of which he still holds the title, as his security for the residue of the purchase money, which remains unpaid. Or, probably, he may have arranged with the heirs, to retain the real estate in payment of that balance, which amounts to the same thing, as to them; as they can only be Charged'as heirs with the value of the mill pond lot, subject to the lien of the unpaid purchase money which still remains due.

The appellants are right in supposing that the decision of the surrogate is erroneous in relation to the Hurst debt. For the purpose of ascertaining the pro rata dividend all the debts, due to creditors of the estate, which are neither secured by a mortgage upon real property, nor entitled to a preference in payment, should be added together, including the balances of mortgage debts not fully secured; and the per centage which the personal estate will pay of that amount should be computed, although some of those debts,had been previously paid by the administrators, either wholly or in part. From the pro rata dividend of each debt, when thus ascertained, there should be deducted the sum or sums already paid by the executor or administrator; and the.surrogate should only decree payment of the deficiency of each creditor’s pro rata share which he has not already received. Here some of Hurst’s notes were paid in full, and others were partially paid; leaving a balance due upon the last note of $224,71, if the surrogate’s return is correct. The administrators had previously paid, upon this and other notes of Hurst, something like $4000; which was considerably more than his pro rata share of his whole debt. Yet the .surrogate has allowed the administrators, in settling the pro rata allowance, only a part of the previous payments; and has decreed a payment to Hurst of the further sum of $188,03. This is clearly erroneous, if the other debts of the testator, upon which a pro rata was computed, were right.

A mistake has also occurred in the amount decreed to be paid to Barclay & Livingston; which is for the whole pro rata allowance upon the balance of their account, without deducting the $24,08, which the administrator paid him beyond the pro. rata proportion, upon the previous payments to them.

The decree is also erroneous in computing the pro rata allowance upon the amount of the debt due to F. J. Betts. As this debt was an offset against the larger sum due from him to the decedent, and which has been charged to the administrators, they should have been allowed in full for the debt paid to him, which was a proper subject of set-off. In other words, the smaller debt due to him, should not have been taken into the account at all, in ascertaining the amount of the debts upon which a pro rata allowance was to be made; but it should have been offset, and deducted from the amount charged to the executors as having been received from F. J. Betts. An error has also occurred in relation to the debt due to Brown & Betts; which debt should have been offset against the smaller debt due from them as mentioned in the inventory. And the full amount of the debt due to the administrators should have been allowed to them, without deducting any thing for the pro rata allowance thereon, or carrying that debt into the estimate. The balance only should have been carried into the estimate, and the pro rata allowance cast upon that. A similar error occurred in relation to the debts due to and from McConn & Sherman. They should have been offset, and the pro rata merely cast upon the balance due from the estate. The pro rata allowance appears to be cast right upo'n the balance due on Sophia Cobb’s note, after deducting the offset of $10 due from her to the estate, as mentioned in the inventory. But the surrogate, by mistake, has neglected to deduct the $10 thus offset, from the amount of the inventory charged to the administrators.

The proof shows that Hertell’s debt was much larger than the amount paid by the administrators; and that the payments made by them to him were less than his pro rata allow-anee would have been upon his whole debt. The administrators should then have been allowed the whole amount paid to him ; although he neglected to come in and claim the rest of his debt before the surrogate, upon the final settlement of the accounts. Those payments should therefore be deducted, in the same manner as if they were for a preferred debt, before proceeding to ascertain the balance of the fund, in the hands of the administrators, upon which the pro rata allowance for other.debts is to be computed. His neglect to come in and claim the residue of his pro rata share, upon the whole debt, is for the benefit of other creditors; as it will increase the dividend coming to them. But it cannot give them the further advantage of depriving the administrators of apart of the amount which they had rightfully paid to him, in a due course of administration, upon claims which are proved to have been due.

It appears, from the testimony, that there was an error in posting about $68, to the account due from Dillon to the estate, instead of posting it to the account of Day; to whom that sum was properly chargeable. The administrators, by mistake, received the whole amount of Dillon’s account, including this erroneous posting; but when they afterwards discovered the mistake, they charged it to Day’s account, and received the same from him. And because the administrators had not yet paid the $68 back to Dillon, to whom it rightfully belongs, the surrogate has charged them with the $68 twice, as assets in their hands for. the creditors of Betts. This is clearly erroneous. For Dillon is entitled tó a return of the money paid by mistake. If he had been aware of the mistake at the time he made the payment, or if he had given up his claim to it, for the benefit of the estate, after being apprised of the facts of the case, the creditors would have been entitled to it, as assets in the hands of the administrators for the benefit of the creditors. But the facts sworn to in this case will not warrant such an inference. And the court cannot presume, from any thing that, appears in evidence here, that the administrators intend to defraud Dillon, by withholding from him this over-payment, even if they have the legal power to do so. But he certainly can never recover it .back, if the surrogate has rightfully decreed that it belongs to the creditors of Betts.

The decree is erroneous in not Allowing the administrators the $18,36 paid to the surrogate upon obtaining letters of administration, &c. It is also erroneous in not allowing a pro rata portion of the payment of costs, to Alexander, for which a proper voucher was produced. The three several sums paid for discount on renewed notes, as mentioned in the petition of appeal, appear to be sums actually paid by the administrators for debts, for which a pro rata- allowance should have been made. For those sums, together with the amount paid on the old notes, when they were renewed in part, and- on the new notes which did not draw interest üntil they were payable, constituted the whole debts paid ; upon which the pro rata allowance should have been computed. There is also an error in crediting the rent of the store at too small a sum. The pew rent does not apppear to be a preferred debt, Under the provisions of the revised statutes; unless it was a lease of the pew for a term of years, so as to go to the administrators as a part of the personal estate. Or at least it should be made to appear that the giving of a preference in payment of this pew rent would in some way benefit the personal estate of the decedent. (2 R. S. 87, § 30.) Nothingof that kind appears here, and a pro rata payment only could be properly allowed. I do not see any thing to satisfy me, that 'the four debts, referred to in the petition of appeal, could not have been collected by the administrators; in the use of reasonable diligence.

The widow was entitled to her reasonable sustenance out of the estate of her husband, during her quarantine, by the express provisions of the revised statutes. (1 R. S. 742, § 17.) And the provision being general, it must be construed to apply to the case of a solvent as Well as of an insolvent estate. But the allowance is Only intended to apply to the sustenance of the widow herself. No provision is made by law for the maintenance of the children of her deceased husband, out of an insolvent estate, beyond the exempt articles allowed to the widow for that purpose.

The decree of the surrogate must be reversed; with costs to the appellants, to be paid out of the estate in their hands. And the proceedings must be remitted to the surrogate of Kings county, with directions to restate the accounts in conformity to this decision; and to make a final decree in the case, upon the evidence already taken therein, and no other. Upon such final decree, he must direct the acting administrator and administra-trix, who are primarily chargeable with any misapplication of the assets, to pay to the creditors entitled thereto, the amount of their several shares still remaining in the hands of such administrator and administratrix, or which has been misapplied by them. And if the same cannot be collected of them, by execution upon such decree, then the other administrators, who are secondarily liable in equity, in consequence of having suffered or permitted such misapplication of the funds, must pay the deficiency to the creditors. But the decree must be without prejudice to the rights of any of the administrators, as against the real estate in the hands of the heirs at law; so far as the misapplication of the personal estate has been caused by paying more than a pro rata share of debts, to creditors who would have' been entitled to claim the residue of their debts as a charge upon the real estate descended to the heirs at law.

The surrogate must be directed, in restating the accounts, to correct any errors in computation merely, which he shall discover to have been made in his former statement of the accounts, although not embraced in the errors above referred to in this opinion; whether such errors are in favor of the appellants or against them.


text:
    Morss vs. Elmendorf.
    Where by the mistake of both parties, as to the existence of a gore of land, one contracted to sell and convey, and the other to purchase and pay for a supposed gore of land which had in fact no actual existence, the vendor cannot file a bill in equity, for the specific performance of the 'contract, or for a compensation in damages by the vendor, for not making the conveyance when requested to do so.
    If the vendor contracts to sell land, and the title to a part of it fails, the vendee may claim a specific performance of the contract, as to that part of the land, to which the vendor can give him a title, and.for a compensation in damages as to the part of the land to which the title fails.

      But where a vendor, by mistake, supposes he has title to land, and contracts to sell and convey the same, he cannot be compelled to convey an adjoining lot, to which he has title.
    Where the vendor never had'title to the land contracted to be sold, or where he has conveyed the same subsequent to the making of the contract, so that he has not the power specifically to perform his contract, and that fact is known to the vendee, the latter cannot file a bill in equity, for the mere purpose of obtaining a compensation in damages for the non-perfonnance of the contract by the vendor; but he must resort to his remedy at law, for that purpose.
    But where the defendant deprives himself of the power to perform his contract specifically, during the pendency of a suit against him to compel such performance, the court will retain the suit; and will award to the complainant a compensation in damages, for the non-performance of the contract by the defendant.
    It seems also, that the court will retain the suit and award a compensation in damages, for the non-performance of the contract, where the defendant was unable to perform the same, at tho time of the filing of the bill for that purpose, where the complainant was ignorant of that fact, and filed his bill for a specific performance in good faith, supposing that the defendant was able to perform the contract specifically.
    The court of chancery docs not entertain jurisdiction of a suit, where the sole object of the complainant’s bill is to obtain a compensation in damages for the breach of a contract, except where the contract is of equitable cognizance merely.
    Nor can the complainant entitle himself to a decree for a compensation in damages merely, by concealing the fact, in his bill, that the defendant is not able to perform his contract specifically; where such fact is known to the complainant, at the time of the filing of such bill.
    Tjais was an appeal from a decree of the late assistant vice chancellor of the first circuit. The bill was filed for the specific performance of a contract under the following circumstances: The defendant, Lucus Elmendorf, and Dutcher & Hogeboom,-aIl supposing that there was a gore of land, containing about 183 acres, between lot No. 11 of the subdivisions of great lot No. 49, in the Hardenburgh patent, and the south line of great lot No. 50, in the same patent, and that Elmendorf was the owner thereof, an agreement was entered into between them, in the following words: “ I do by these presents, agree to and with G. Dutcher and C. Hogeboom, to lease to them the gore lot, of about 183 acres, situate in the town of Prattsville, Greene county, lying between lot No. 11 in great lot No. 49, and the south line of great lot No. 50, in the Hardenburgh patent; by a durable lease to them, either jointly, or to each a separate lease, which shall contain ,a reservation on the whole lot of 32 bushels of good, merchantable winter wheat, after three years rent free; the lease or-leases to contain the usual reservations and covenants of my durable leases on my Strasburgh tract, in Schoharie county. They have my permission immediately to move on' to the same, provided they shall take and execute leases within three years, rent free, from this date. March 1, 1839.”. Shortly afterwards, Dutcher and Hogeboom assigned all their interest in the contract to G. B. Morss, the complainant, upon condition that they should have all the bark upon the land at the market price, to be peeled, and drawn and delivered by them to Morss, and to be paid for by him in the manner in the assignment specified. The instrument called an assignment then concluded in these words: “ If this memorandum is not sufficiently strong to hold the bark, wo are to give the said Morss another one as soon as requested.” Soon afterwards, the complainant ascertained that it was doubtful whether Elmendorf had title to any such land as was referred to in the agreement; and neither he, nor Dutcher and Hoge-boom, ever went into possession of the supposed gore, under the contract. In 1840, Elmendorf became satisfied that there was no such gore as the parties at the time of entering into the agreement, supposed existed; and he refused to execute a lease to Morss, who demanded the execution.of the same to him, under such agreement. The complainant thereupon filed his bill in this cause, for a specific performance of the contract; The defendant, by his answer, stated that there was no such gore of land as, by the contract for a lease, was supposed to exist, and that there was no land between lot No. 11, of the subdivision of great lot No. 49 and the line of great lot No. 50. The testimony of a surveyor, who was well acquainted with the comers and locations of the several lots, also showed that there was no such gore; but that great lot No. 50, and lot No. 11 of the subdivisions of great lot No. 49, were bounded upon one and the same line, and upon each other. The cause was heard upon pleading and proofs, and the assistant vice chancellor decreed that the complainant was entitled to relief against the defendant, in this court. And he further decreed that it be referred to a master to ascertain the location and boundaries of what, was designated as the gore lot, and to make a map thereof if he should be able to locate the same; and if he could not locate the same, or should find that the supposed gore was within the bounds of great lot No. 50, or of some other lot than great lot No. 49, then to ascertain whether the defendant, at the date of the contract, was the owner of lot No. 11 of the subdivision of great lot No. 49, or of any and what part thereof, and if so, whether he was still the owner, or when he ceased to be such owner ; and if the defendant was such owner, the master was directed to set off a strip of lot No. 11, on the westerly side thereof, equal in contents and value to the gore of 183 acres, as it was at the date of the contract. And the defendant was directed to execute to the complainant a perpetual lease thereof, according to the terms of the contract. It was further decreed, in case the master should find that the defendant did not then own lot No. 11, or any part thereof, and was not the owner thereof at the.date of the contract, that such master proceed to assess.^ the damages which should be allowed and paid to the complainant by the defendant, for the non-performance of the contract. From this decree the defendant appealed to the chancellor.

      M. McDonald, for the appellant.
    The contract set forth in the complainant’s bill was obtained from the defendant by the false and fraudulent representations of Dutcher and Hogeboom. The defendant was deceived, by such representations, as" to the existence of the gore of land, which he agreed by the contract to convey. There was no such gore of land. And both Dutcher and Hogeboom had been informed and knew that there was no such gore, before they obtained the contract from the defendant. And the complainant also knew it before he obtained an assignment of the contract from Dutcher and Hogeboom. They formed a conspiracy to extort from the defendant a heavy amount of damages for the non-performance of this contract. The contract was a personal undertaking with Dutcher and Hogeboom, and their interest in it was not assignable. The defendant had the right to select his own lessees. He had the right to insist that Dutcher and Hogeboom should be bound to hint for the rent: The pecuniary condition; of the complainant is not shoWn. He may be insolvent. The case of Crosby v. Tooke, (1 Mylne & Keene, 434,) cited by the assistant vice chancellor, is not applicable. There the contracting party was insolvent, and his as-signee was solvent. Dutcher and Hogeboom did not,-on the 3d of April, 1839, assign to the complainant- the-right to take die lease in his name. They only assigned to him the bark óh the land. A sale of timber conveys no interest in the land. (4 Kent's Com. 450, note C. 1 Ld. Raym. 182. 11 East's Rep. 362.) Dutcher and Hogeboom conveyed to the cómplaín'aút no authority to receive .the lease, until the 8th of July, 1840’. The demands of the lease, from the defendant, by Dutcher and Hoge boom-,- and by the complainant, were insufficient.- There'was ho offer to execute a- counterpart by them. A purchaser must on his part, perform or offer to perform a contract for the purchase of land; and he must demand a conveyance from the vendor, where .the covenants are mutual and dependant, before he can maintain an action against the vendor for non-performance. (Gazely v. Price, 16 John. 267. Robb v. Montgomery, 20 Id. 15; Fuller v. Williams, 7 Cowen, 53. Fuller v. Hubbard, 6 Id. 13. 1 Salk. 171. Topping v. Root, 5 Cowen, 404.) The decree of the assistant vice chancellor is erroneous in directing the defendant to convey to the complainant a different piece of land from the one described in the contract. The evidence.in relation to the value of the land and bark should have been suppressed, as the evidence did not relate to the land described in the contract, and was not material and relevant to the question of damages; The measure of the damages which the complainant would- be entitled to recover, if any, is the amount of rents actually paid the defendant under the contract, with interest. (Kelly v. Dutch Church, &c. 2 Hill, 106. 10 Wend. 150. 2 Id. 405. 3 Cowen, 115. 21 Wend. 343.) But no rents have been paid) and no consideration was paid for the contract. The contract was a mere Voluntary agreement. Anfd a specific performance-will not'- be decreed-of such atf agreement. (4 Paige, 305.) If the-com-plainanft has any remedy h’e'has a'-perféct-'réiñe’dy at law: As. the fraud charged in the bill is disproved, the objection of the want of jurisdiction may be taken at the hearing. The ground upon which a court of equity enforces specific performance is fraud; fraud of the defendant in making the contract, or in resisting its complete execution after a part performance. A part performance generally works a fraud unless the contract is carried into complete execution. The court will also enforce a specific performance where the complainant’s remedy at law is doubtful, or imperfect. But a court of equity never interferes where the legal remedy is adequate. (8 Ves. 163.) The complainant must come with clean hands. (18 Ves. 11.) The defendant may resist a specific performance by showing that there was an omission or mistake; (3 Atk. 388; 7 Ves. 211; 1 Ves. & B. 512; 13 Ves. 25; 1 Mad. Rep. 11; 2 Ball & B. 33;) or that the agreement is unconscientious; (1 Bro. C. C. 555;) or unreasonable; (1 Id. 556;) or by showing fraud or surprise; (Greener. Greene, 2 Ves. 307; 1 Mad. Rep. 11; 2 Ball & B. 287;) or misrepresentation, whether wilful or not. (1 Ves. & B. 356. 6 Ves. 328. 2 Ball & B. 33. 1 Mad. Rep. 81. 1 Camp. 337.)
    The covenants in the contract were broken by the defendant immediately upon its execution, in consequence of there being no ' such land as described in the contract, for which a lease could be given. And the complainant cannot maintain a suit for a breach which occurred previous to the assignment to him. (2 John. Rep. 7. 14 Id. 39. 4 Id. 72.)
    The defendant, in this case, executed the contract under a mis- . take of fact; a mistáke occasioned, by the false and fraudulent representations of Dutcher and Hogeboom, for whose benefit it was made. And equity will not, under the circumstances, compel the defendant to convey to the complainant a different piece of land — or to pay him damages for the breach of the agreement. (18 Wend. 412. 6 Paige, 189.)

      A. J. Parker, for the respondent.
    The complainant is entitled to a specific performance and to a lease of the land known as the “ gore lot,” containing about 183 acres of land. The original contract was mutually obligatory, and the lease was to contain mutual covenants. (German v. Machín, 6 Paige, 288.) The complainant, as assignee, enjoys all the rights of the assignor. It is no defence to a bill filed against a landlord for a specific performance of an agreement for a farming lease, by a person to whom the benefit of the agreement has been assigned, that the party with whom the landlord had contracted had become insolvent ; provided the assignee is solvent and in a condition to enter into the usual covenants. And there is no evidence that the contract was entered into upon considerations personal to the assignor. (Crosbie v. Tooke, l Mylne & Keene, 431. 6 Paige, 288. Morgan v. Rhodes, 1 Mylne & Keene, 435. Murray v. Gouverneur, 2 John. Cas. 438.) There is no proof that the defendant does not own the lot. He asserted in the contract that he did, and in his subsequent letters. The existence of the lot in question called the gore lot, whether properly or not, is recognized by all the witnesses. The lease was three times demanded ; and at the time of the last demand a lease was tendered, to be executed, and an offer made to execute it on the part of the complainant. This was unnecessary. One demand was enough. And the defendant should then have drawn and executed the lease. The vendor must draw and execute the deed, and have it ready for delivery when required. (Wells v. Smith, 2 Edw. Rep. 78; S. C. 7 Paige, 29. Tapp v. Beverly, 1 Leigh 80.) Besides, it is the settled and universal practice in this state for the landlord to prepare all leases. Where an- agreement to make a lease is entered into upon certain terms, the party to whom the lease is to be made cannot enforce a specific performance, unless he performs or offers to perform his part of the agreement, or shows that he is willing.or able to do so. {Harris v. Banks, 1 Rand. 408.) An obligor is not permitted to avail himself of any uncertainty in the boundaries of the land which he contracts to convey, to avoid a specific performance ; and the court will decree a conveyance according to the best lights which the circumstances afford. (Kennedy v. Davis, 2 Bibb, 321, 344.) He who sells property on a description given by himself is bound to make good that description; and if it be untrue in, a material part, although the varij^ice may be occasioned by a mistake, he will still be liable for that variance. [McFerron v. Taylor, 3 Cranch, 270.) But if it is out of the power of the defendant to perform specifically, by reason of his not owning the land, the bill should be retained and an equivalent in damages awarded, to be assessed on reference to a master, or by a jury upon an issue of quantum damnijicatus. [ Woodcock v. Bennet, 1 Cowen, 713. Philips v. Thompson, 1 John. Ch. Rep. 131, 150. 1 Ves. Jun. 329. 1 John. Ch. 274. 14 John. Rep. 15, 45. Greenaway v. Adams, 12 Vesey, 395. 1 Fonb. 38, n. y, 165, n. b.) Here it was proper for the complainant to come into.the court of chancery to ascertain the defendant’s title and obtain a specific performance, if it was in the defendant’s power to perform; andBif it is not in his power, we are clearly entitled to compensation in damages. Chief Justice Spencer says, “ no man should be permitted to say to another that he has led him into an error by holding out false appearances; but that the party deceived must nevertheless bear the loss resulting from that error.” ( Waters v. Travis, 9 John. 469.) A vendee may compel a specific performance in cases in which the vendor could not. ' (9 John. 450.) The defendant caunot object, on the hearing, that the complainant- has a remedy at law, where he has not set it up in his answer. [Bradley v. Root, 5 Paige, 636.) A defendant cannot avail himself of a defence which appears in his evidence only, and is not set up in his answer. (1 Russ. & Myl. 527. Statiley v. Robinson, 1 Russ. & Myl. Ch. Rep. 527.) In Kempshall v. Stone, [5 John. Ch. Rep. 193,) the defendant set up in his answer that the plaintiff’s remedy was at law, and claimed the same benefit of that objection as if he had demurred; and he therefore had the benefit of it on the hearing. The decision in the case last cited does not conflict in any respect with the claim here. There the complainant had been repeatedly called on to pay the balance and to take the deed, and the defendant had given him notice that he intended to sell and convey to another person if no objection was made. The case of Kempshall v. Stone was decided by Kent, Chancellor, in 1821, and the case of Woodcock v. Bennett, by the court of errors, in 1833. In the case of Kempshall v. Slone, (5 John. Ch. 193,) the defendant had conveyed before the bill was filed, and' that fact was known to the complainant; .and such knowledge was held material. Here the defendant had made no conveyance to any other person before the commencement of the suit. And the complainant could not know that the defendant could not perform specifically. The fact that some one had said that the defendant did not own the land, even if known to the complainant,could make no difference-, as the defendant affirmed, as late as July, 1840, that he owned the land and would convey. But if the defendant afterwards told the complainant that he had no title, he cannot avail himself of any such statement here. The complainant’s rights and remedies cannot be controlled by what the defendant chooses to say. The fact that a suit is pending, in which lands are held adversely to the vendor, is not a sufficient ground for reporting that a good title cannot be made. ( OsbaldiMin v. Askew, 1 Russ. 160.) Admitting that in order to obtain merely a repayment of the purchase money, the complainant has a remedy in a court of law; he has nevertheless a right to file his bill to compel the defendant to complete his contract, or to have it rescinded and the damages paid. In Pierce v. Nichols, (1 Paige, 244, 46,) such relief was granted, in a similar case, under the general prayer for relief. The complainant is entitled to costs. (Russell v. Livingston, 4 John. Ch. Rep. 149. Brigham v. Brigham, 1 Ves. 126.) But if the bill is dismissed on the ground that there is a remedy at law, costs will not be awarded to the defendant. (Kempshall .v. Stone, 5 John. Ch. Rep. 194.)
   The Chancellor.

There is no principle upon which this decree or any part thereof can be sustained. The question whether there was in fact any gore, between lot No. 20 of the subdivisions of great lot No. 49 and the line of great lot No. 50, was distinctly put in issue by the defendant’s answer, and by the replication filed to the same; so that each party had a full opportunity to taire testimony to thqt point. And the evidence of Keirstead, the surveyor, and the map of the location of the lots, produced by him, show conclusively that no such gore ever existed except in the imaginations of the inhabitants of the neighborhood, and in that of the defendant who resided at some considerable distance from the supposed premises intended to be leased. It, therefore, was useless and improper to direct a reference, and subject the parties to further expense, when the complainant had not attempted to controvert this fact, stated in the defendant’s answer, by any testimony whatever in opposition to the positive evidence of Keirstead; 'who established the fact beyond all doubt. Another' surveyor who surveyed the supposed gore for the complainant, and who was examined by him as a witness, does not pretend to dispute the fact sworn to by Keirstead, that the supposed gore is in fact within the bounds of great lot No. 5Q, as actually run out and located upon the land by Tappan and Cockburn ; the commissioners who made the partition of the patent more than fifty years since. It must, therefore, be considered as settled, for all the purposes of this suit, that all the parties to the contract of the first of March, 1839, were under a mistake in supposing that there was any such gore'as is described in that contract. It is true the letters of the defendant, written.soon after the contract was made, and rvhen he supposed great lots No. 20 and No. 49 cornered together, state that there was a gore. But the answer and the evidence shows that the defendant was then laboring under a mistake. And as the lease, if executed in conformity with that contract, and purporting to convey land which has in fact no existence, would have been a mere nullity, there was nothing of which a specific performance could be decreed. I am also satisfied, from the evidence, that the complainant must have been aware of the fact that there was no such gore of land, at the time of filing this bill.

The assistant vice chancellor has indeed attempted to make a new contract for the parties, and to decree a specific performance thereof, provided the defendant owns any land in lot No. 11. That, however, is land which neither of the parties supposed was to be included in the lease. For by the terms of thé contract the whole of great lot No. 50, and the whole of lot No. 11 of the subdivisions of great lot No. 49, are necessarily excluded from the operation of such contract. (See Jackson v. Woodruff, 1 Cowen’s Rep. 276.) Where the vendor has contracted to convey a tract of land the title to a part of which fails, the vendee may claim a specific performance of the contract as to the residue of the land, with a compensation in damages in relation to the part as to which the vendor is unable to give a good title. At least courts of equity have in some instances acted upon that principle. But I am not aware of any case in which the vendor has been decreed to convey an entirely different piece of land from that which the parties had in contemplation at the time of making their contract, and which is not in fact embraced in such contract. Here it is perfectly evident that neither party, at the time of making this contract, expected that Elmendorf was to lease to Butcher and Hogeboom any part of lot No. 11. That part of the decree which directs the master to set off to the complainant 183 acres of lot No. 11, to be leased to him by Elmendorf, provided it shall be found by the master that the defendant is the owner of lot No. 11, is therefore clearly erroneous.

Nor do I think this is a proper case for the court to decree a compensation in damages to the complainant; even if this court has jurisdiction to entertain a suit for damages merely, where the defendant never had the title to land which he has positively agreed to convey, or where he has parted with his title before the commencement of the suit, and that fact is known to the complainant at the time of filing of his bill. Here the evidence shows that the parties were acting under a mutual mistake, as to the actual existence of the gore, between lots No. 20 and 5'0, at the time the contract was made. If the contract has any legal force or effect whatever, which is at least doubtful, there is no reason why Dutcher and Hogeboom, or the complainant who claims the benefit of the contract under them, should not be left to their action at law to recover damages for the non-performance of the contract, if any damages have in fact been sustained. Nothing had been done by them, or either of them, under the contract, and nothing had been paid. Nor was there any mutuality in it. For the defendant could not have sustained any suit or action, against Dutcher and Hogeboom, if they had refused to take a lease'of the supposed gore ofland ; which, in fact, had no existence. The most that can be said in this case is, that Dutcher and Hogeboom have lost the speculation which they supposed they were making when they entered into the contract of March, 1839. The means of ascertaining whether the supposed gore had any existence was equally accessible to both parties, as the lines of the lots were run' out and marked upon the land. And the defendant being misled by the reports in the neighborhood of the existence of a gore, when there was no such gore, no fault is attributable to him. In such a case, the proper course is to leave the parties to their legal remedies, if they have any.

It is also perfectly evident in this case, that the complainant, at the time he filed his bill, was aware that the supposed gore had no actual existence, and that no specific performance of the agreement could be obtained in this court. And, in a case of that kind, Chancellor Kent correctly decided that this court ought not to entertain the suit merely for the assessment of damages. (Hatch v. Cobb, 4 John. Ch. Rep. 559. Kempshall v. Stone, 5 Id. 193.) But where the defendant deprives himself of the power to perform the contract specifically, during the pen-dency of a suit to compel such performance, this court may very properly retain the suit, and award to the complainant a compensation in damages; to prevent a multiplicity of suits. And I am not prepared to say that such a decree might not be proper, where the defendant had deprived himself of the power to perform the contract prior to the filing of the bill, but without the knowledge of the complainant; or even where he never had the power to perform, if the complainant had filed his bill in good faith, supposing at the time he instituted his suit here that a specific performance of the contract could be obtained under the decree of this cour.t. But this court does not entertain jurisdiction where the sole object of the bill is to obtain a compensation in damages for the breach of a contract, except where the contract is of equitable cognizance merely. Nor can the' complainant, entitle himself to the interference of this ooartr.to give him a compensation in damages for the non-performance of a contract, by neglectjng to state, in his bill, that the defendant is unable to perform the contract specifically; where that fact .is known to him at the time of filing his bill in this court. For if the facts which were then known to him had been fully stated in his bill, the defendant might have demurred, upon the ground that the complainant’s remedy, if any he had, was at law and not in equity. Or he might have raised that objection in his answer. In this case, therefore, the complainant’s bill cannot be retained, for the purpose of obtaining a compensation in damages merely, when he knew that he .could expect nothing more than such a compensation in damages at the time of filing his bill. And the complainant having made a case, by his bill, apparently entitling him to a specific performance, he cannot now insist that the defendant has waived the objection, that the remedy of the complainant was at law; because he did not demur to the bill, or state that objection in his answer.

The decree appealed from is erroneous, and must be reversed. And the complainant’s bill must be dismissed, with costs in the court below; but without prejudice to the complainant’s remedy at law, upon the contract, if he has any such remedy there. The defendant having died since this cause was submitted upon the appeal, the decree to be entered upon this decision must be entered nunc pro tunc, as of the time of such submission.


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    Varick and others vs. Edwards and others.
    Where both parties had derived their title to the premises under the will of a former occupant, and the defendants, or those under whom they derived title, had recovered the premises from the ancestor of the complainant, upon the ground that the legal title was vested in the surviving son of such former occupant, by the will of his father; Held, that the defendants were estopped from denying the title of such surviving son, under whose title they had succeeded in their action at law;'the complainants claiming under a prior equitable title derived from such son.
    Where land was devised by the testator to his two sons, with a limitation over to the survivor if either of them should die without issue; apd both joined in a conveyance, to a purchaser, for a valuable consideration, and one of them afterwards died without issue, in the lifetime of the other ; Held, that the purchaser was entitled in equity to the land devised to the brother who died first, and which afterwards came to the survivor, under the executory limitation over to him.
    Where the person to whom land belongs in equity is in possession thereof, and he is af-terwards evicted by a person having the mere legal title to the premises, the statute of limitations, as a Bar to the equitable right, does not begin to run until such eviction. And the person so evicted may file his bill in chancery, to establish his equitable right to the premises, at any time within ten years after such eviction.
    This case came before the chancellor upon an appeal, by the defendant Edwards, from a decree of the late assistant vice chancellor of the first circuit. The facts appear in the report of the case before him, in 1 Hoffman's Chancery Rep. 382.

      S. A. Foot & H. P. Edwards, for the appellant.

      G. Wood & W. S. Johnson, for the respondents.
   The Chancellor.

The assistant vice chancellor, in the able and elaborate opinion delivered by him, in the court below, has so fully examined the law and the facts in this case, that in affirming' his decree it is only necessary that I should state briefly the conclusions of law and fact at which I have arrived.

Medcef Eden, the elder, either died seised in fee of the premises in question; or he died in possession thereof as a mortgagee, having entered for the non-payment of the mortgage money, and he and his devisees continued in such possession until the right of the mortgagor was barred by lapse of time. And in the view I have taken of this case it is not very material which was the case in point of fact.

The defendants, or rather those under whom they claim, having recovered the premises at law, as devisees of Medcef Eden the younger, and upon the ground that the premises, at his death, belonged to him, under the executory devise contained in the will of his father, both parties are estopped from denying that the legal title was in him under such executory devise. And if he hg,d made an assignment, under the insolvent act, previous to the conveyance to Winter, this court must presume a reconveyance from the assignee before that time, if Med-cef Eden the younger’s contingent interest in the premises was such an one as was capable of passing to such assignee, under the insolvent act.

The interest of Medcef Eden the younger, under the will of his father, was such an interest as could be assigned in equity; although the court of dernier resort has decided that it could not be assigned at law by a conveyance operating under the statute of uses, merely, só as to transfer the legal title to the purchaser during the life of Joseph Eden.

The deed of 1804, to Joseph Winter, was duly, executed by Medcef Eden the younger, as well as by Joseph Eden; and was intended, by its terms, to convey all the right and interest which they or either of them then had, or which they might thereafter be entitled to, in the premises, under the will of their father, either vested or contingent, and the possibility of survivorship of Med-cef Eden the younger, in case his brother should die without leaving issue. Such deed was founded upon a sufficient consideration ; and was sufficient in equity to transfer to Winter the future and contingent right of Medcef Eden the younger to the property.

The equitable owner of the premises was in possession of the property, under this deed, at the death of Joseph Eden. And not having been disturbed in such possession until he, or those claiming under him, were turned out of possession by the holder of the legal title, under the judgment in ejectment, in 1827, time was not a bar to the complainant’s suit in equity; nor did the statute of limitations commence running until such eviction. The complainants having no concurrent remedy at law, their right in equity could not be barred, except by the ten years limitation as to suits of exclusive equity cognizance, prescribed by the revised statutes; and this suit was brought within the ten years.

The decision of the court for the correction of errors is only res adjudicata and conclusive as to the legal title to the premises. And it dogs not in any way affect the equitable rights of the complainants; except so far as to settle the question that their remedy, if any, is in this court and not in a court of láw. ■

The court of chancery had jurisdiction of the case, to grant the relief which is given by the decree appealed from; and, for the reasons above stated, the complainants were entitled,to such relief. The decree appealed from must therefore be affirmed, with costs.


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    J. & W. Taylor vs. Carpenter.
    Where manufacturers adopt certain trade-marks, and stamp them upon articles manufactured by them, they have a right to an exclusive use of such trade-marks, and are entitled to the interposition of a court of equity to enforce such right by a perpetual injunction.
    Any person who pirates the trade-marks of manufacturers may not only be restrained by injunction from using such trade-marks, but where he uses them for the fraudulent purpose of inducing the public to believe that the article to which such marks are affixed is the genuine article manufactured by those who first adopted the marks, and with the intention of supplanting them in the good will of their trade and business, he is also liable to respond for the damages sustained by them in consequence of such fraud.
    And the fact that the simulated article is of equal quality and value with the genuine article, is no defence to a bill filed against the pirate, by the manufacturers of the genuine article, to restrain him from using their trade-marks.
    Aliens have the same right to relief in a court of equity, against a piracy of their trade-marks, as citizens of the United States.
    The bill in this cause was filed for the purpose of obtaining a perpetual injunction, restraining the defendant from using the trade-marks of the complainants. The bill stated that the complainants, who resided in England, were engaged in manufacturing cotton sewing thread, and vending the same not only in England but in the United States, and particularly in the city and state of New-York; that their thread was put up for sale on spools, labelled on the top ■ of the spool, “ Taylor’s Persian Thread,” and on the bottom' of the spool, “ J. & W. Taylor, Liecester,” each spool containing about 200 or 300 yards of thread; that the spools containing 200 yards were black, and labelled “ 200 yards,” on the bottom of the spools, and those containing 300 yards were red, and labelled “ 300 yards,” on the bottom of the spool; and that on the centre of the same label, on the bottom of each spool, was stamped the symbol or print of a lion rampant. The bill further stated, that by means of the care, skill, and fidelity with which the complainants had conducted the manufacture of such thread for many years, their thread had acquired a great reputation in the trade throughout the United . States; and that large quantities were required and furnished by them for the consumption of the country, &c. The complainants further stated, in their bill, that the defendant, for the purpose of procuring the trade and custom of persons who had been in the habit of vending and using the complainants’ thread, and of inducing such persons and the public to believe that the defendant’s thread was in fact manufactured by the complainants, had engaged extensively in the manufacture of cotton sewing thread; that he had caused the same to be put up for sale, on spools similar to those used by the complainants, and so colored, stamped, and labelled, as exactly to resemble the spools used by them; that the spools and cotton sewing thread so prepared by the defendant for sale, and sold by him, was an exact imitation- of the article manufactured and sold b.y the complainants; that the spurious article thus manufactured and sold by ,him, although inferior in quality to the genuine thread manufactured and sold by them, could only be distinguished therefrom by a careful examination of its quality, and by its falling short in the number of yards, and was well’calculated to deceive dealers and purchasers; and that the same was a fraud and deception upon those who dealt in the thread, and who were induced to purchase the same, believing it to be the genuine article manufactured by the complainants. The complainants therefore prayed for a perpetual injunction, restraining the defendant and his agents from manufacturing and selling, or offering for sale, such simulated thread, under the name of Taylor’s Persian Thread, or by an imitation of their labels or marks, &c.; and that the defendant might be decreed to account for the profits which had been made by the sale of such simulated thread, or which the complainants would have made upon the sale of their genuine thread but for his inequitable and wilful piracy of theirnames, spools, and labels. The defendant, by his answer, admitted all the material allegations in the bill; and particularly that he was and had been engaged in manufacturing and putting up for sale cotton sewing thread with the complainants’ marks, and so colored, stamped, and labelled as to resemble exactly, or as nearly as the same could be done, the spools used by the complainant. But he denied that the thread manufactured and sold by him was an inferior article, and insisted that it was as good, in all respects, as the thread of the complainants, and contained the same number of yards upon a spool. The cause was heard upon bill and answer.

      M. Hoffman, for the complainants.
    The most ample protection is given to trade-marks, long used, which become notorious, and which give a reputation and character to the article. The cases are all collected in Drewry on Inj. 231 et seq. The case of Bell v. Locke, (8 Paige, 75,) contains and adopts the English principle. The simulation of tire name and dress in that case, with a view to deceive the public into the belief that the papers were the same, would have been sufficient had such identity in fact existed. The answer avers that the quality of the defendant’s article is not inferior to that of the complainants. This fact is wholly immaterial. The blacking in the case cited by Mr. Eden, (Day v. Day, Eden on Inj. 226,) may have been of equally good quality. And in Knott v. Morgan, (2 Keen, 213,) cited in Bell v. Locke, the omnibus of the defendant may have been as commodious and as speedy as that of the complainant, and it may have served the public as well. Whether it was so or not is no part of the case, and is entirely immaterial. The wrong to the individual is palpable. The deception upon the public is equally so. The point of actual damage, or no damage, to the purchasers is not to be regarded. The only question is, whether the great principle of American law between ourselves — the principle of common honesty and sound equity— shall be administered in behalf of a foreigner.

      It appears difficult to imagine a reason why the foreigner should not be protected as well as the citizen. Certainly it is for the interest of trade, and for the interest of the citizens of the United States, that they should, not be deceived in'an article which has obtained and merited, and which they have a right to suppose will retain and merit its reputation; instead of being at the mercy of every forger, who when he succeeds by his forgery in driving the genuine article from the market may impose a very inferior one upon the public. Under the patent laws of the United States, the talent or skill of a foreigner is so far respected that a prior invention by him of the thing patented here will defeat the patent. (Rutgers v. Kanowers, 1 Wash. C. C. R. 168. Melius v. Silsbee, 4 Mason, 108. Whitney v. Carter, cited in Fessenden!s Law of Patents, 123.) The 10th section of the act of Congress of April, 1800, prescribes the mode in which a patent shall be repealed. I have not found any case upon this section, except that of Perkins v. Odióme, (Fessend. 'Law of Pat. 175.) And the question, whether the repeal could be made upon the suggestion of a foreigner, has probably never been made the ground of judicial decision. The course in England appears to be to proceed by a scire facias; obtained upon a memorial of the aggrieved party, and on the fiat of the attorney general. (2 Richardson!s Pr. C. P. 391.) The interest of trade, the comity of nations, and the protection of our own citizens, require that so palpable a fraud upon the rights of property should not to be permitted to pass unredressed.

      J. Blunt, for the defendant.
    Property in things which we have created or improved by our own labor or skill, is generally recognized by the municipal law, but not always. And the title thus conferred is not invariably of the same quality or degree. Property in any physical or material article is as complete and as lasting as the object itself. It is not deemed so when the property is of an immaterial or intellectual character. The right to such property is not only of limited duration, but certain steps are necessary to be taken to secure the enjoyment of it during that period. The property in patents and in literary publications is of that character. And surely nothing of property of this description can have a more sacred character than that which a man has himself created ; yet of such property an inventor or author-is not entitled to the exclusive enjoyment, unless he conforms to the requisitions of the patent or copyright laws. And these only secure to him the right of property in his own country, and for a limited period. In foreign countries, any one may use the patent or infringe the copyright, and no redress is provided for the inventor or author. His right of property extends not beyond the jurisdiction of his country.
    If such be the law and policy of this country as to property of the highest intellectual character, how can the complainants ask the interference of the court, to protect them in the exclusive enjoyment of the property which is the subject of this suit. Although it is of a similar character, it is so much inferior as not to be deemed worthy of protection under the laws provided for the enjoyment of patents and copyrights. All the cases cited in behalf of the complainants are between citizens of the.same country, and are altogether inapplicable to a controversy between Englishmen and citizens of the United States.
    The law of England does not protect the inventions of a citizen 'of the'United States from being used by her majesty’s subjects. And the annals of invention are full of the appropriation by Englishmen of machinery, invented by American genius, without acknowledgment or compensation. The comity of nations cannot be invoked, in behalf of an English subject. The whole commercial legislation of Great Britain is founded upon a principle of deep rooted hostility to the interests of other nations. Of all civilized powers, England has least to ask of other countries, in a commercial point of view, on account of the comity of nations. She has granted nothing to us, and she is entitled to ask nothing at our hands.
   The Chancellor.

The fact that the complainants are subjects of another government, and that the defendant is a citizen of the United States, as stated in the answer, cannot alter the rights of the- parties, or deprive, the complainants of the favorable interposition of this court if those rights have been violated by the defendant. So far as the subject matter of this suit is concerned, there is no difference between citizens and aliens. And the only question proper to be considered is whether the defendant has the right, as he insists he has, to pirate the trademarks of the complainants with impunity.; and tq palm off upon the community a simulated article, as the genuine Taylor’s Persian Thread manufactured and put up for sale by them.

In the case of Bell v. Locke, (7 Paige's Rep. 75,) I had occasion to examine the question whether an.injunction bill could be sustained for the fraudulent assumption of the name of the complainant’s newspaper, for the-purpose of deceiving the public and supplanting him in the good will of his business. And I then came to the conclusion that this court had jurisdiction to interfere for the protection of the complainant’s rights in such a case. I there referred to the case of Knott v. Morgan, (2 Keen's Rep. 213,) where the present master of the rolls in England granted an injunction to restrain the defendant from running an omnibus having upon it the simulated names and devices which were previously in use by the complainant; which simulation was to induce the public to believe it was the complainant’s omnibus, and to deprive the latter of a part of the good will of his business by this fraudulent device. Since the case of Bell v. Locke was before me, the case of Millington v. Fox, (3 Myl. & Craig's Rep. 338,) has been decided by Lord Cottenham. That decision .fully sustains the claim made by the complainants in the present case. There the complainants for many years had been engaged in the manufacturing of steel, with a particular name or mark thereon indicating the persons by whom it was manufactured. The defendants, without being aware that this was the trade-mark of the complainants or of any individual, commenced the manufacture and sale of steel with the complainants’ marks thereon. And a perpetual injunction was granted against the use of such marks; although the. lord chancellor was satisfied that no fraud was intended. He says that having come to the conclusion that the complainants were entitled to the marks, in question, they had an undoubted right to the assistance of. a court of equity to enforce that title, by a perpetual injunction. 'But as the defendants had • given notice of their intention to. abandon the use of the marks, as soon ap they discovered that they belonged to the complainants, they were not charged with costs. A case is also cited by Lord Henley, in his treatise upon injunctions, where a manufacturer of blacking was restrained from using labels in imitation of those used by the complainant, ip that case. (See also Ransome v. Burtall, 3 Law Jour. 161.)

In the case under consideration, the defendant admits that he has intentionally pirated the complainants’ name as well as their other marks; that he put up the spools of thread manufactured by him, and stamped and marked them with their marks; and that he so colored; stamped and labelled them as to resemble exactly, or as nearly as could be done, the spools used by the complainants. After such an avowal, no one can doubt for a moment that the defendant did this for the fraudulent purpose of inducing the public, or those who were dealing in the article, to believe that it was in fact the thread manufactured and put up by the complainants; with the intention of supplanting them in the good will of their trade and business. And it is wholly immaterial whether the simulated article, manufactured by the defendant, is or is not of equal goodness and value with the real “Taylor’s Persian Thread,” manufactured and put up for sale by the complainants. They are therefore entitled to the relief prayed for in this bill.

The injunction must be made perpetual, and the defendant must pay to the complainants their costs of this suit. If the complainants wish it, they may also have a reference to a master to ascertain and report the amount of their damages; and a decree that the defendant pay the amount of such damages, upon the coming in and confirmation of the master’s report.

       Affirmed upon appeal to the court for the correction of errors, December, 1846. And see the cases on this subject collected in notes to Patridge v. Menck, (2 Barbour's Ch. Rep. 101.)