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    The Union Insurance Company vs. Van Rensselaer and others.
    In mortgage cases, defendants whose claims are upon the equity of redemption merely,and who have no interest in the mortgaged premises in opposition to the complainant’s claim, are not permitted to litigate their claims to the surplus as between themselves, until it is ascertained that there will be a surplus; unless their liens are upon different parcels of the mortgaged premises, or their rights are of such a peculiar nature as to require them to be passed upon by the court previous to a decree of sale.
    If the complainant in a mortgage case unnecessarily sets out the rights of the several defendants at length, his bill may be excepted to for impertinence ; and if not excepted to, the extra costs occasioned by the insertion of such unnecessary statements in the bill will be disallowed on taxation.
    And where the complainant in such cases so misstates the rights of a defendant as to render it necessary for him to put in an answer to protect his rights, the complainant may be personally charged with the extra costs occasioned thereby.
    The guardian ad litem of an infant defendant can only be allowed his taxable costs, against a fund belonging to other parties in the cause.
    It must be a very special case to authorize the court to allow any thing beyond the taxable costs, of the guardian ad litem, to be charged upon a fund belonging to an infant.
    February 11.
    The bill in this case was filed to foreclose a mortgage, exeecuted by P. Van Rensselaer and wife to the complainants. All the defendants were made parties as claimants upon the equity of redemption only, and none of them contested the right of the complainants to a foreclosure and sale of the mortgaged premises for the purpose of satisfying their mortgage. The guardian ad litem of the infant defendants claimed an extra allowance, for counsel fees on a motion to correct the master’s report of the amount due. Trotter and Douglass, two of the defendants who were judgment creditors of the mortgagor, claimed their costs, on the ground that they had been compelled to put in an answer by reason of a misstatement of their rights in the complainants’ bill.

      J. Rhoades, for the complainants..

      jP. S. Henry, for Trotter and Douglass.

      I. Williams, for the infant defendants.
   The Chancellor.

By the present practice of this court, in mortgage cases, those defendants whose claims are upon the equity of redemption merely, and who have no right or interest in the mortgaged premises in opposition to the complainant’s claim, are not permitted to litigate their respective claims to the surplus, as between themselves, before it is ascertained that there will be a surplus over and above the complainants’ debt and costs, except where their liens are upon different parcels of the mortgaged premises. And if the bill is properly framed, containing only a general allegation that the defendants have or claim some interest in the mortgaged premises as subsequent purchasers, encumbrancers, or otherwise, according to the 132d rule, it cannot be necessary for them to put in answers to protect their several rights, or to litigate the same, unless those rights are of such a peculiar nature as to require them to be passed upon previous to a decree for sale. As the rule of the court has expressly prohibited the complainants from setting out the rights of subsequent purchasers or encumbrancers at length, the defendants, or either of them, may except to the bill for impertinence, if such unnecessary statements are inserted therein. Even where no exceptions for impetinence are filed, if any statements in the bill are in fact useless, or impertinent, it will be the duty of the taxing officer, upon the taxation of the complainant’s costs, to disallow all extra charges or expenses which have arisen from the insertion of such useless statements. And in addition to the loss of so much of his own costs as is 'occasioned thereby, if the complainant has misstated the rights of any of the defendants, so that their equitable interests in the surplus, or in the equity of redemption, might be affected if they should suffer the bill to be taken as confessed, he may be charged personally with so much of the defendants’ costs as have been rendered necessary by such misstatements of their rights to the equity of redemption, or in the surplus.

In the case under consideration, however, I find, by an examination of the pleadings, that the suit was commenced before the adoption of the new rules; and when, by the practice of the court, the rights of all the defendants as subsequent encumbrancers, were to be ascertained before any decree of sale could be made. (See Renwick v. McComb & Pell, 1 Hopk. Rep. 277.) It appears by the pleadings that an execution had been issued on the judgment of Trotter and Douglass, and that the premises had been sold by the sheriff and struck off to Lansing. And the will of Lansing refers to the land as having been purchased by him upon a sale under that judgment. The complainants, therefore, had reason to believe that the legal title had passed to Lansing upon that sale. Under such circumstances, and in reference to the practice of the court as it existed when this bill was filed, I do not think proper to charge the complainants with costs.

I cannot direct the costs of these two defendants to be paid out of the fund, until it is ascertained whether the devisees of Lansing, or Trotter and Douglass, are entitled to the surplus. The bill states that the mortgagor conveyed the whole equity of redemption to Lansing in 1818, shortly after the judgment was obtained. As the judgment was not a lien upon the property after ten years, as against Lansing or his devisees, if he was a bona fide purchaser those devisees may be entitled to the whole surplus, notwithstanding the judgment is unpaid ; and if no such conveyance was ever made, the widow of the mortgagor may have an equitable claim upon the surplus for her dower, which is paramount to the claim under a judgment against the husband only. The answer of Trotter and Douglass is not evidence against any of their co-defendants. (3 Paige's Rep. 368.) There must therefore be the usual reference to determine the rights of the defendants, as between themselves, if there should be any surplus on the sale. If any extra allowance is made to the guardian ad litem of the infants, it must be paid out of their share in the surplus; as nothing but the taxable costs can be charged upon that portion of the fund which belongs to other parties. And it must be a very special case to justify the court in allowing extra counsel fees against an infant in any event.

There must be the usual decree for a sale, and for the pay- " ment of the costs of the guardian ad litem and of the complainants, together with the debt of the latter, and for the master to bring the surplus, if any, into court. If there shall be any surplus, either of the defendants may apply to the register and obtain the usual order for a reference to ascertain the rights of the defendants in such surplus ; and the question as to the costs of Trotter and Douglass, and the costs of the several parties on the reference, and all other questions and directions are to be reserved until the coming in of the master’s report on such reference.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Stafford vs. Brown & Brown.
    Exceptions to an answer for insufficiency can only be sustained where some material allegation, charge, or interrogatory in the bill is not fully answered.
    Where the matter of the bill is fully answered, and the defendant sets up new matter which is irrelevant and forms no sufficient grounds of defence, the complainant may except to the answer for impertinence, but he cannot except to it for insufficiency.
    On exceptions for insufficiency, the particular points or matters in the bill which remain unanswered, or which are imperfectly answered, should be stated in the exceptions.
    Where the complainant wishes to obtain a discovery of facts to anticipate and rebut the defence which may be set up by the defendant, he should, in the charging part of the bill, state the anticipated defence as a pretence of the defendant, and then charge the real facts to lay a foundation for the discovery which is sought.
    April 2.
    This case came before the court upon exceptions to the master’s report allowing certain exceptions to the defendants’ answer.

      J. Lansing, for the complainant.

      M. T. Reynolds, for the defendants.
   The Chancellor.

The question which arises upon the five first exceptions allowed by the master is, whether there aré any allegations or interrogatories in the complainant’s bill to authorize him to call upon the defendants to answer the several matters of those exceptions. In the case of Whitmarsh v. Morris & Campbell, and in some other cases, none of which have been reported, this court decided that exceptions to an answer for insufficiency could not' be sustained, unless there was some material allegation, charge or interrogatory contained in the bill which was not fully answered. That where new matter, not responsive to the bill, was stated in the answer, if such matter was wholly irrelevant and formed no sufficient ground of defence, the complainant might except to the answer for impertinence, or might raise the objection at the hearing. All the writers on the subject of equity pleading lay down the principle, distinctly, that exceptions for insufficiency are founded upon the supposition that some material allegation, charge or interrogatory in the complainant’s bill is not fully answered. In Lord liedesdale’s Treatise it is said, that if the complainant conceives an answer to be insufficient to the charges contained in the bill, he may take exceptions to it, stating such parts of the bill as he conceives are not answered, and praying that the defendant may in such respects put in a full answer to the bill. (Mitf. Pl., 4 Lond. ed. 315.) Cooper says, the exceptions for insufficiency are to be in writing, stating the parts of the bill which the complainant alleges are not answered. (Cooper's Pl. 319.) Newland also says, that exceptions for insufficiency are allegations in writing, stating the particular points or matters in the bill which the defendant has not sufficiently answered. (1 Newl. Pr., 3 Lond. ed. 259.) And Lube, in his analysis of the principles of equity pleading, says the exception must state the precise points in the bill unanswered, or which are imperfectly answered. (Lube's Eq. Pl. 87.) Although it may not be necessary in the exception to state the precise words of the allegation, charge or interrogatory in the bill which is not fully answered, yet the substance at least must be stated; so that by referring to the bill alone, in connection with the exception, the court may see that the particular matters, as to which a further answer is sought, are stated in the bill, or that such an answer is called for by the interrogatories. (See Hodgson v. Butterfield, 2 Sim. & Stu. 236.) As the general denial of all the matters of the bill not before answered, with which the answer usually concludes, is sufficient as a pleading to put the several matters of the bill in issue, the principal object of the exceptions for insufficiency is to examine the defendant on oath for the purpose of discovery merely. For this purpose the complainant may even anticipate the defence of the defendant, and may obtain a discovery of matters connected with such defence, which are in nowise responsive to the main charges in the bill upon which the complainant’s equity is supposed to rest. The proper method of obtaining such discovery, however, is not by exceptions for insufficiency founded upon the answer alone, but by framing the bill in such a manner as to call for all the particulars of the defence which it is supposed the defendant will set up. This is effected by what is usually called the charging part of the bill, in which the anticipated defence is stated as a pretence of the defendant, supported by proper charges and interrogatories founded upon such alleged pretence. In this way the complainant is not only enabled to anticipate the defence itself, by putting other matters in issue which will have the effect to displace the equity thereof, but he is also enabled to examine the defendant on interrogatories in relation to all the particulars of such defence. (Mitford, 43. Lube’s Eq. Pl. 241, 268.) By an amendment of the bill the complainant may generally effect the same object, even after the defendant has put in an answer setting up such defence.

In the case under consideration the complainant, in his bill, has stated the recovery of a judgment against the defendant E. Brown, on which an execution has been returned unsatisfied. But as he has left the question of present indebtedness to be presumed, as an inference of law arising from the facts thus stated, the defendants were not called upon to do more than to admit the facts as stated in the bill. This admission, however, did not preclude them from rebutting this legal presumption of indebtedness by setting up, as a distinct matter of defence, the payment of the judgment either wholly or in part. But as this part of the answer was not called for by the bill and was not responsive to any thing contained therein, it would be no evidence in favor of the defendants unless established by proof. If the complainant had stated in the bill that the defendants pretended that E. Brown had paid the whole or a part of the judgment, and charged that such pretence was unfounded, he might in the interrogatory part of the bill have called for all the particulars as to the time, place, amount and manner of such pretended payment. But in that case the answer would have been evidence, in favor of the defendants, as to the matters they were thus called upon to answer. Nothing should be permitted to remain in an answer which is neither called for by the bill, nor material to the defence or with reference to any decree or order which may be made in the cause. But the proper mode of making the objection to any such immaterial statement, with a view to have it expunged, is by excepting to the answer for impertinence.

As the whole of the discovery called for by the five first exceptions allowed by the master was founded upon new matters set up by the defendants in their answer, by way of defence, those exceptions should have been disallowed.

The matters of the ninth, twelfth and thirteenth exceptions are fully answered, so far as any foundation was laid for those exceptions by the allegations in the bill; and so far as the exceptions went beyond the bill they were inadmissible. So much of the master’s report as was excepted to by the defendants must therefore be overruled, with costs. And if the complainant does not think proper to amend his bill within ten days, as authorized by the 190th rule of this court, the defendants must answer the matters of the eighth, tenth and eleventh exceptions within the time specified in the report of the master.


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    A. Smith, by her next friend, vs. D. Smith.
    In a bill for a separation on account of cruel treatment, the complainant cannot insert a charge of adultery, and ask for a decree dissolving the marriage contract, if that charge should be sustained.
    April 2.
    The complainant in this case, by her next friend, filed a bill against her husband, charging him with cruel and inhuman treatment, and also with the crime of adultery. And she prayed for a separation from bed and board forever, or for a decree dissolving the marriage contract. The defendant demurred to the bill for multifariousness, or duplicity, in joining two distinct causes of action, requiring different decrees, and which were incompatible and improper to be joined in the same bill.

      S. Sherwood, for the complainant,
    insisted that in a bill for a divorce the charges of cruel and inhuman treatment and of adultery could be united. He said all that is required, where different causes of action are contained in the same bill, is that the relief sought should be of the same kind, though varying in degree. The like rule prevails in criminal courts. Murder and manslaughter, mayem and assault and battery, may be charged in the same indictment. So trespass for a seduction may be united with a cause of action for trespass on real or personal property.

      M. T. Reynolds, contra,
    contended that the causes of action for cruel and inhuman treatment and for adultery required different decrees. That there would be two issues to try before a jury, and a double verdict must be rendered. That the complainant could on oath compel the defendant to answer as to all his acts except as to the fact of adultery. He cited 1 John. Ch. Rep. 606; 2 Mad. Ch. 225; Mitf. 99; 11 Ves. 369.
   The Chancellor.

The question presented by this demurrer is whether a suit for a separation from bed and board, on account of cruelty, can be joined in the same bill with a suit for a divorce, on the ground of adultery. In the case of Pomeroy v. Pomeroy, (1 John. Ch. Rep. 606,) upon an application to file security for costs upon a bill of this kind, Chancellor Kent intimated an opinion that these two causes of action could not be contained in the same bill. But the question was not then decided; as the statute only required security for costs in a suit which was for a separation from bed and board merely. One of the difficulties then suggested exists in this case, under the statute now in force. In a suit fora separation the defendant is required to put in his answer on oath ; but he may answer a bill for a divorce, on the ground of adultery, without oath. Another difficulty exists as to the mode of trial; the one charge requiring a trial by jury, and the other being triable by the court as in ordinary suits in chancery. It is true this court might award an issue to try the question of cruel treatment, but it would be very difficult to frame an issue which would convey the requisite information to the chancellor to enable him to exercise a sound discretion in deciding upon the propriety of a separation. In cases of this description, there is generally more or less fault on both sides; and I am satisfied the peace of families and the welfare of society would not be promoted by sending such controversies to be decided upon by a jury. In many cases, even after the facts have been ascertained, such family quarrels have been compromised and settled under the friendly advice of the court; which probably it would be impossible to accomplish after both parties had been subjected to the disgrace of a public trial. The nature of the defences to these two distinct charges may also be of an entirely different character. Even the adultery of the wife would not be an absolute bar to her suit for a separation on account of cruel and inhuman treatment; although it might be sufficient to reduce the amount of alimony to which she would otherwise be entitled. But to a bill for a divorce the husband might plead the adultery of the wife as a bar to the suit. He might also set up such a defence, in his answer, in connection with a denial of the adultery on his part. And in such a case a double issue would be awarded to try the charge of adultery contained in the bill, and also ta determine the question as to the truth of the recriminatory charge contained in the answer. The decrees upon these two distinct causes of action must also be different. And the practice of the court requires a different mode of commencing the suits. In the one case the wife is allowed to prosecute in her own name, but in the other the suit must be brought by her next friend, who is chargeable with the costs in case of failure.

This is not a proper case for a bill with a double aspect; and I am satisfied that public policy as well as the rules of law forbid the joining of these two charges in the same bill. The wife should not be encouraged to make a charge of adultery against her husband unless she has the means of substantiating the charge by proof. And if she can prove the adultery, a suit for a separation or limited divorce is useless.

The demurrer must be allowed ; and the bill is dismissed, with costs, to be paid by the next friend.


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    Dougrey vs. Topping & Holme.
    Where an administratrix sold real estate of the decedent under a surrogate’s, order, in which estate she was entitled to dower, and in the terms of sale it was stated that a clear and satisfactory title would be given, and the purchaser paid the full value of the premises, under a belief that he was obtaining a perfect title; Held, that the silence of the administratrix as to her claim of dower was such a fraud upon the purchaser as to preclude her from afterwards setting up such claim against him or his assigns.
    Notwithstanding the complainant waives the necessity of an answer on oath from a defendant, the answer must be sworn to if the defendant wishes to move to dissolve an injunction upon the bill and answer.
    April 2.
    This case came before the court upon a motion to dissolve an injunction. The facts sufficiently appear in the opinion of the chancellor.

      H. P. Hunt, for the complainant.

      tSL. Van Vechten, for the defendants.
   The Chancellor.

This is an application by the defend.ants to dissolve an injunction, granted upon the filing of the bill in this cause, restraining the defendant Margaret Topping from proceeding to recover her doxver in a lot and brewery in Lansingburgh. The complainant waived the necessity of an answer on oath; but that did not prevent the defendants from swearing to their answer with a view to a'dissolution of the injunction. As they have not availed themselves of the right to deny the equity of the bill on oath for this purpose, the answer must be laid out of _the question in deciding upon this application. (Rule 37.) The question now before the court must therefore be decided upon the matter of the bill only. And for the purpose of the present motion, every allegation in the bill must be taken as true. But this will not prevent a dissolution of the injunction at the final hearing, if the allegations in the bill are not sustained by proof. The complainant alleges that in September, 1829, M. Vassar purchased the lot and brew-house in question, of the defendants as the personal representatives of J. Topping, deceased, under an order of the surrogate of the county of Rensselaer. That the property was sold at auction, and that Holme, the administrator, directed the auctioneer to offer the property for sale free from all and every encumbrance except an annual ground rent; the premises being held under a durable lease. That by the written terms of sale, which were afterwards signed by Vassar as the purchaser, it was stated that a clear and satisfactory title was to be given, subject to the ground rent reserved by the lease. That after the sale and previous to the execution of the deed, the complainant agreed with Vassar for the purchase of an undivided half of the premises, and that he afterwards obtained from Vassar a conveyance accordingly. That at a subsequent time, the complainant also purchased of Vassar the other half of the premises, and obtained a conveyance therefor. The complainant also alleges, that before payment of the purchase money on the sale to Vassar, and when the defendants were about to execute the deed to him under the surrogate’s order, their counsel assured the complainant and Vassar that the conveyance which was prepared and then ready for delivery, was sufficient to pass the right of dower of Mrs. Topping in the premises. And the defendant Holme, at the same time, also assured Vassar that he was getting a good title to the property, free from every encumbrance and claim except the ground rent and a small judgment aghiiisi Topping; which judgment was to be immediately paid off by the defendants. That upon these assurances, and upon the further assurance of the counsel for the defendants that he might rely with confidence upon the same, Vassar consented to take the deed and paid the purchase money. The complainant further alleges that Mrs. Topping, the administratrix, understood and approved of the terms of sale and the representations thus made by Holme, the administrator; and knew that the purchaser was to have the premises free from all claims of dower or other encumbrances, except the ground rent. That Vassar accepted the conveyance and paid the purchase" money, which was the full value of the premises, under the belief that he was obtaining a good title to the property, free from all claims of dower or other encumbrances, except such ground rent. It also appears from the complainant’s bill that he and Vassar made permanent improvements on the premises, to the value of about $900, before they had any notice that the administratrix intended to claim dower in the same. About a year after the sale, Mrs. Topping instituted proceedings before the surrogate to obtain an assignment of her dower, which she now insists was not conveyed by the deed executed by herself and Holme to Vassar.

It is not necessary for the decision of the present application that I should examine the question whether the deed to Vassar may not be valid as a release, so as to bar the right of dower of Mrs. Topping, although it might not take effect as a bargain and sale under the statute of uses for want of a pecuniary consideration passing directly to herself. As the dower was not assigned, the whole legal title would pass by a conveyance from the defendants in their representative character only; and if the words of release, contained in the deed, can be applied to Mrs. Topping in her individual capacity, a pecuniary consideration would not be necessary to make it a valid release of her right of dower in the premises.

If the legal right to dower still remains in Mrs. Topping, yet if the allegations in this bill are true, there is a strong equitable claim on the "part of this complainant to be relieveá against this right of dower. As the law then was, the widow was not bound to have her dower sold with the interest of the heirs at law, which the defendants were authorized to sell under the surrogate’s order. It is evident, however, that as to property situated as this was, it would very much enhance the value if the whole should be sold together. And if the facts had been properly reported to the surrogate, she would have been entitled to retain her share of the purchase money out of the fund produced by the sale. It does not appear whether this has been done, or whether there is not even now a sufficient sum remaining in the hands of the surrogate to compensate her for her right of dower. If her rights have not been protected, it has been owing to the negligence of the defendants, and not to the fault of the complainant And as the case now stands before me, the complainant is, in equity, entitled to protection against any claim which either of these defendants had upon the premises at the time they received the money of Vassal-, under the assurance that he was receiving a good title. As the administratrix joined in the report of the sale to the surrogate, she must have been present at the sale either personally or by her agent; and must have seen the written terms of sale in which it was stated that the purchaser was to have a clear and satisfactory title. It was the brewery, and the lot on which it stood, and not merely the decedent’s interest therein, for which a clear and satisfactory title was to be given to the purchaser. And that necessarily excluded the idea that the purchaser was to take the property encumbered with a right of dower which had then become vested by the death of the husband. It therefore seems to be impossible that any of the parties could have supposed the purchaser was to take the property at its full value, and yet that the claim of dower was not to be relinquished. As the defendants must have known that Vassal* was paying his money under a supposition that he was getting a perfect title, if Mrs. Topping did not intend to part with her dower conscience required her to speak. And silence under such circumstances was such a fraud upon the purchaser as to prevent her from afterwards making her claim for dower in the premises.

The motion must be denied with costs; and the injunction is to be retained till the hearing of the cause, and till further order.


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    Badgley vs. Bruce & Halsey.
    The court of chancery has concurrent jurisdiction with courts of law in suits for the recovery or assignment of dower.
    On a bill for the recovery of dower, if the right of the widow is admitted by the answer, the court will proceed at once to assign the dower; and to take an account of the arrears, if it is a case in which she could recover damages at law. But if her right is disputed, the court will retain the bill, and direct a suit at law to ascertain the title.
    April 2.
    This was an appeal from a decretal order of the vice chancellor of the seventh circuit, overruling the demurrer of the defendants to the complainant’s bill. The complainant was the widow of W. Badgley, deceased; and she filed her bill in this cause to recover her dower in a lot of land, of which the husband was seized during coverture. The bill alleged that the premises in question were sold on an execution against the husband, previous to his death, and were purchased by G. V. Sackett, who conveyed the same to the defendant Bruce. That the title thus obtained was in Bruce at the commencement of this suit, in 1829; but that the defendant Halsey was then in the actual possession thereof, under a lease from Bruce for a term of years. It also appeared from the bill that the complainant called upon both defendants, previous to the commencement of this suit, and requested them to assign her dower in the premises; with which request they refused to comply. The bill prayed for an assignment of dower, and for general relief. The defendants put in a demurrer to the bill, for want of equity, alleging that the complainant had a full and competent remedy at law.

      J. Rhoades, for the complainant,

      W. H. Seimrd, for the defendants.
   The Chancellor.

It was a question of doubt for some Mine how far a court of equity would take jurisdiction of a case for the assignment of dower. The jurisdiction of the ■court of chancery in England had long been sustained, where 'here was any difficulty in the way of the widow’s proceeding at law, as, tin outstanding term, the want of information as to the title, or the want of means to establish the title of the husband in a court of law, in consequence of the possession of the deeds by the heirs, &c. And finally it was decided, in the case of Mundy v. Mundy, (2 Ves. jun. 122,) that a demurrer to a bill for dower could not be sustained, although the bill did not contain any allegation that there was an impediment to the complainant’s remedy in an action at law. It may therefore be considered as settled in England that the court of chancery has concurrent jurisdiction with courts of law in suits for the assignment of dower. It was supposed by the appellant’s counsel, on the argument, that the demurrer was disallowed in the case of Mundy v. Mundy, on the ground that-it was overruled by the answer. It will be found, however, on examination, that the answer did not profess to cover that part of the case to which the demurrer related. The answer went to the discovery merely, and the demurrer was only to the relief, prayed by the bill, on the ground that the remedy was at law. It was then supposed that upon a bill for a discovery and relief, the defendant was bound to make the discovery, although the prayer for relief could not be granted where the remedy at law was perfect. The case therefore presented the question whether the court of chancery would grant relief to the widow upon a purely legal title, where the objection was made at the proper stage of the suit. The rule, as settled in England, now is, that upon a bill in equity for the assignment of dower, if the seisin of the husband and the title of the wife are admitted by the answer, the court will proceed at once to assign dower; and to take an account of the mesne profits since the death of the husband, if it is a case in which the widow would be entitled to damages at law. But if the title of the complainant is denied, the court will retain the bill, and direct a suit at law to try the title; and will then give her possession, and decree such other relief as she may be entitled to on the right thus established. Chancellor Kent also considered the case of Swaine v. Perrine, (5 John. Ch. Rep. 482,) as settling the jurisdiction of this court in the same way; although that was a case in which the objection does not appear to have been raised until the hearing, when it certainly was too late to raise an objection that the complainant had a perfect remedy at law. (4 Kent’s Com. 2d ed. 72.) It appears also that a similar jurisdiction is exercised in several of our sister states, in their equity courts. It is stated in the case of Grayson v. Moncure, (1 Leigh’s Rep. 449,) that the widow had filed her bill in equity against her infant children for the assignment of her dower, and had a decree thereon. And Carr, J., who delivered the opinion of the court of appeals, says, she might have filed her bill at the first court after her husband’s death. I presume, therefore, that the jurisdiction of the equity courts is considered as fully settled in the state of Virginia. The court of appeals in Maryland also has recently decided that the court of chancery in that state has jurisdiction to decree dower to the widow, and rents and profits from the death of the husband. It is there also said that where the title is controverted, it must be made out at law. But Archer, J., who delivered the opinion of the court, says, it does not follow that the complainant’s bill is to be dismissed because the right of dower is denied by the defendants; but the chancellor should retain the bill a reasonable time, .until the right at law is established. (Wells et ux. v. O’Beall, 2 Gill & John. Rep. 468.) In the state pf Kentucky also it appears the courts of equity have an acknowledged jurisdiction in cases of dower. And the reports of the court of appeals in that state contain many cases in which bills have been filed to obtain assignments of dower, and to recover the arrears of dower from the death of the husband. (See Kendall v. Honey, 5 Monroes Rep. 284. Jones v. Todd, 2 J. J. Marsh, Rep. 359. Stevens v. Smith, 4 Id. 64.)

In the case under consideration, there was a difficulty in proceeding at law, at the time this bill was filed, inasmuch as the premises were in the actual occupancy of a termor, whose term had not yet expired ; and the complainant could not ascertain how long it was to continue. ^Previous to the revised statutes, the remedy at law for dower was by a writ of dower, unde nihil habet. But as this was a species of real action, it could only be sustained against the owner of the freehold. It • would not have lain against the defendant Halsey, who was merely a tenant for years. (Miller v. Beverly, 1 Hen. & Munf. Rep. 368. Rosc. on Real Actions, 40.) The widow applied to the tenant in possession, and he refused to assign her dower because he was not the owner of the land; and the tenant of the freehold refused to give her the assignment to which she was entitled, because he had a covenant of warranty from some one else. Under such circumstances, I think she was right in applying to the equity court for relief, so that she might obtain the actual possession of her dower right in the premises, notwithstanding the existence of the term for years. As the law then stood, the complainant could have recovered neither damages or costs in a suit at law, by writ of dower. And if she had brought her suit against the owner of the freehold, he would have had it in his power to vouch his grantor to warranty; and thus the litigation would have been protracted as well as expensive. And her costs would probably have been more than the value of her dower. She therefore had an excuse for coming into this court, where she might recover the costs of the litigation, if the defendants, or those who were bound to guaranty the title, had no reasonable grounds for withholding her right and subjecting her to that expense.

The decision of the vice chancellor in overruling the demurrer was correct, and it must be affirmed, with costs. The defendants must pay the costs of this appeal, and the costs of the argument of the demurrer and of the proceedings thereon before the vice chancellor. They must also put in their answer, within twenty days, or the bill is to be taken as confessed, And the proceedings are remitted to the vice chancellor,


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    J. Kellett, executor, &c. vs. C. Rathbun and others.
    Where the parties interested in the taking of the account, of an executor or' administrator, neglect to appear before the surrogate, after having been diily cited, the executor or administrator will be entitled to pfoceed ex parte.
    The citation of an infant should be served in the presence of his legal guardian, or of the person who has properly the actual care and custody of hi» person.
    The citation should direct the infant to appear according to law; that is, by his guardian duly constituted.
    If an infant who is cited before a surrogate has no general guardian, or if the general guardian has an interest adverse to the rights of the infant, a guardian ad litem must be appointed by the surrogate.
    The petition of appeal, upon an appeal from a surrogate’s decree, should name all the persons intended to be designated as the respondents, and should pray that they may answer the same.
    Where one of several legatees cites an executor to account before a surrogate, and upon the return of the citation the executor, instead of making the objection that he is not liable to account, obtains a citation for all the other legatees to be pre: ont at the taking of the account, he admits his liability ; and he cannot ai. rwards set up, as a bar to the suit for an account, a previous settlement with the legatees.
    Where an executor or administrator renders an account to the surrogate, upon the application of either a creditor or legatee, or with a view to a final settlement of the account, he must swear to the correctness of the account, both as to the debits and credits; and all charges for payments, or disbursements, of sums exceeding $20, must, if disputed, be established by the production of vouchers or other proper evidence.
    Where an executor mixed the funds of the estate with his own, and loaned out the same from time to time, on interest, without keeping separate accounts thereof; it was held to be a violation of his duty, by which he became liable to pay interest on the monies belonging to the estate.
    An executor cannot appeal from the decision of a surrogate in refusing to allow a claim of a creditor against the estate, which claim the executor has not paid or become personally liable to pay.
    Upon the affirmance of a decree of a surrogate, directing the payment of a balance found due from the appellant, the respondent may have the decree of affirmance enrolled, and may take out execution thereon in the appellate court.
    April 2.
    This was an appeal from the sentence of the surrogate of the county of Cayuga, upon the final settlement of the accounts of the acting executor of Amos Rathbun, deceased. The testator, by his will, directed his real estate to be sold within five years after his decease; and that the proceeds both of his real and personal estate, after the payment of a small, legacy to one of his sons, and an allowance to the widow in lieu of dower, should be divided among his other nine children in certain specified proportions. J. Kellett, the appellant, who was one of the executors, and the widow, who was appointed executrix, made probate of the will, soon after the death of the testator in 1823. The real estate was sold by the executor and executrix, in 1824, and the proceeds thereof, as well as the proceeds of the personal estate, were received by Kellett previous to September, 1828. On the 15th of September, 1828, Kellett made a statement of the gross amount of funds in his hands, as he alleged, and of the amount thereof due to each of the distributees, and paid over the several sums which from such statement appeared to be due to them respectively. The balance thus stated to be due to C. Rathbun, one of the distributees residing in the state of Ohio, was received by B. Kniffen, who had a power of attorney from him. Kniffen, as the attorney for C. Rathbun, together with four of the adult distributees, gave a receipt to Kellett for the balances thus paid over to them respectively, as their portions due on the final distribution of the estate. None of them, however, went into the examination of the accounts of the executor, and no detailed account of the receipts and expenditures on account of the estate was either made out or exhibited. And it was stated by the counsel of Kellett, at the time of giving the receipt and in his presence, that the giving of the same would not deprive the signers thereof of their rights if the accounts of the executor were incorrect. Kniffen was also expressly told by Kellett and his counsel that his signing the receipt would not prevent C. Rathbun from making a further claim upon the executor if the account was not correct. He therefore received such balance as Kellett stated to be due, without looking into his accounts.
    In June, 1830, C. Rathbun obtained from the surrogate of Cayuga a citation, calling upon Kellett, the executor, to render an account of his administration. On the return day of this citation, Kellett appeared before the surrogate, and, in behalf of himself and the executrix, presented a petition, staff Ing that he had been cited to account by C. Rathbun; that the petitioners knew of no claim against the estate, except a demand made by I. Merritt, on account of a deficiency of land ; that the petitioners were desirous of having a final settlement of the accounts; and praying that the several distributees mentioned in the petition, and Merritt who made such claim as a creditor, might be cited to attend the final settlement of the accounts. A citation was issued accordingly, returnable on the 19th of July, 1830; and the proceedings on the original citation of C. Rathbun were adjourned until that time. The citation issued on behalf of the executor and executrix, was returned duly served on the several persons named therein. The executor then exhibited to the surrogate the statement of the balances due to the several distributees, as made by him on the 15th of September, 1828, with the receipt thereon, and insisted that he was not bound to render any further or other account of the administration of the estate. After hearing testimony as to what took place at the time that statement was made and the receipts were given, the surrogate decided that this was not a sufficient account. He therefore ordered the executor to render an account of his proceedings as executor, according to law, on the 28th day of the same month ; to which time the proceedings upon the several citations were adjourned. The executor then rendered a detailed acount of his administration of the estate; but such account was not verified by his oath, except as to payments made by him of sums of twenty dollars and under. The counsel for the distributees objected to several items on the credit side of the account; and also claimed interest on the monies in the hands of the executor, from time to time, for which he had given no credit in the account. After hearing the proofs and allegations of the parties, the surrogate allowed to the executor some of the credits objected to, and disallowed others, which are particularly referred to in the opinion of the chancellor. The surrogate also decided, that upon the facts disclosed by the proofs, the executor ought to be charged with interest on the monies in his hands arising from the sales of the real estate, to be computed after the expiration of two months from the time he received such monies, and upon the proceeds of the personal-estate after six months, from the time when such proceeds were received. The balance found due from the executor, on the statement -of the account by the surrogate, including such interest, amounted to the sum of $2225,80 on the 19th of August, 1830, in addition to what had been paid to the distributees in September, 1828, and previous thereto. This sum the executor was directed to bring into court, together with a further-sum which he was sentenced to pay for the costs of C. Rathbun and the surrogate’s fees upon the talcing of the account. From this final sentence or decree of the surrogate, the executor appealed to the chancellor. The petition of appeal filed in this court, according to the 118th rule, prayed that the respondents might answer the appeal, and that the sentence or decree of the surrogate might be reversed; but without stating the names of such respondents, or showing who were intended to be made parties to the appeal. It did not appear that any answer had ever been put in to this petition of appeal, or that an order to answer the same had ever been obtained. But the notice of hearing, and other papers in this court, were entitled in the cause of I. Kellett, appellant, against C. Rathbun and others, respondents.
    W. II. Seward, for the appellant.

      G. C. Bronson, for the respondents.
   The Chancellor.

The proceedings in this case are informal, not only in the court below, but also upon this appeal. But the counsel for the appellant, and the counsel for the several distributees who were entitled to be made parties to the appeal, have consented that such formal defects may be corrected, and that the case should be disposed of on its merits. It is only necessary, therefore, to refer to some of these formal defects for the purpose of pointing out the corrections to be made in the proceedings in that respect, and to prevent similar occurrences in future cases. It appears by the return of the surrogate that all the residuary legatees or distributees of A, Rathbun, deceased, were cited, by the executor and the exectih'ix, to attend before the surrogate upon the final settlement of their accounts. But it does not appear from the proceedings w^ich are before this court, whether any of such legatees, except C. Rathbun, attended before the surrogate, either by their proctors or olherwise, upon the taking of the account. Neither does it appear whether any person attended as the general guardian, or as the guardian ad litem, of those legatees who were infants. The revised statutes do not direct the particular mode of proceeding where the parties interested in the taking of the account of an executor or administrator neglect to appear, after being duly cited to attend upon the final settlement of the account; and no special provision is made for the protection of the rights of infants in such cases. I apprehend, however, that the only effect of the default of a legatee to attend, in such a case, would be to enable the executor or administrator to proceed ex parte as to such legatee. (See 1 Bro. Civ. & Adm. Law, 457.) Minors are not esteemed in law as capable of .conducting or defending a suit for themselves; and they therefore cannot be deprived of any of their rights by a mere neglect to appear upon a citation, or other process to compel an appearance. The citation of a minor should be served in the presence of his legal guardian, or in the presence of some person upon whom the actual care or custody of the minor, for the time being, has properly devolved. And evidence of the service of the citation on the minor merely is not sufficient; especially, if the minor is so young as to be incapable of understanding the object or intent of such service. (Cooper v. Green, 2 Addams’ Eccl. Rep. 454. Law's Pr. Eccl. Courts, 69.) The citation in such cases should direct the minor to appear according to law; that is, by his guardian lawfully constituted. (Law’s Pr. 88. 1 Bro. Civ. & Adm. Law, 454.) And if a minor, who is cited before the surrogate in a testamentary cause, has no general guardian, or if the general guardian has an interest adverse to the rights of the minor, so that he cannot act as guardian in relation to that matter, a guardian ad litem may be appointed by the surrogate to protect the rights of the minor. (Turnev. Felton, 2 Phillim. Rep. 93.) The counsel who has appeared for the respondents on this appeal may therefore be assigned as the guardian ad litem for those legatees who are minors, and may put in an answer to the petition of appeal.

The petition of appeal is informal, in not naming the persons who are intended to be designated as the respondents. The proceedings before the surrogate were instituted on the petition of C. Rathbun. He therefore was strictly the actor in the litigation in the court below; but the other legatees were called in by the appellant, because they were also interested in the taking of the account. The sentence of the surrogate is for a gross sum which is to be distributed among all the residuary legatees; they have therefore a common interest, and must all be made parties to the appeal. It was irregular to bring the cause to a hearing before the respondents had answered the petition of appeal. After the transcript of the proceedings before the surrogate has been returned to this court, if the respondents named in the petition of appeal do not voluntarily answer the same, the appellant should apply for an order requiring them to put in their answer to the petition of appeal, within such time as the court may think proper to direct, or that they be precluded,- and the cause be heard ex parte as against them. The petition of appeal in this case must be amended, so as to pray that the several persons in whose favor the sentence of the surrogate was pronounced may answer the petition. And the respondents must file an answer to the same, nunc pro tunc, as of a_day previous to the argument of the cause.

The first objection which is made to the sentence of the surrogate is, that the appellant had settled with the legatees, in September, 1828, and therefore was not bound to account. The appeal does not appear to reach that case, even if it was competent for the executor to appeal from the order directing him to account, after the expiration of thirty days from the malting of that order. The appeal is in terms from the final decree in the cause; and no objection is raised in the notice or in the petition of appeal, to the order of the surrogate direeling the executor to account. There is also another diffi- • culty- in sustaining this objection to the decree of the surrogate. If the executor had settled with C. Rathbun, so that he had no right to call him to account before the surrogate, he should have put in an allegation .of the fact before the surrogate, upon the return of. the first citation, as a bar to C. Rathbun’s suit for ah account. Instead of doing this, he admits his liability to account by demanding and obtaining a citation for all the other legatees to be present at the taking of such account. After that, it was too late for him to insist that he had already fully accounted for the administration of the estate. But the evidence in the cause shows conclusively that there was no settlement of the account between the executor and the agent of C. Rathbun. The agent was expressly informed that the receipt signed by him would not bind his principal, except for the amount actually received. He therefore took whatever sum the executor chose to pay, and without looking at the accounts. The other legatees, who signed the receipt for themselves, were also informed that they were not to be precluded, if it was afterwards ascertained that there was any mistake in the accounts. They might perhaps have had more difficulty in sustaining a proceeding, as actors before the surrogate, to compel the executor to account, without first showing a mistake in the balance of the account as stated by the executor. But when those legatees were cited before the surrogate for the ■purpose of binding them by the account which was to be taken between him and C. Rathbun, they were entitled to any further sums which might be found due to them upon the restating of the accounts and the correction of errors which had before occurred. If the surrogate had any jurisdiction or authority to entertain a proceeding for the final settlement of the accounts of the executor and executrix, then the account, rendered, on the 19th of July, was wholly insufficient. Even the account subsequently rendered was not such an one as the executor was bound to render, as it was not made on oath. When an executor or administrator renders an account to the surrogate, either upon the application of. a creditor or legatee, or with a view to a final settlement thereof under the provisions of the statute, he must swear to the correctness of the account, both as to the debits and credits. (Conset’s Pr. Eccl. Court, 290, pt. 6, ch. 3, § 2.) And if any items on the credit side of the account, except for payments not exceeding $20, are disputed, he must also establish the payment, by the production of vouchers, or other proper evidence of such payment. In this case, for some reason which is not stated, the executor has only sworn to the correctness of the_ account as to the payments of $20 and under; leaving it to be inferred that he was not able to swear to the correctness of the account generally.

The first disputed item on the credit side of the account, which was rejected by the surrogate, was $152,30, claimed in behalf of I. Merritt for an alleged deficiency in the sale of a part of the real estate. There is no pretence that this sum has ever been paid by the executor; and, from the testimony in the case, I am satisfied that he was not legally holden for the payment thereof at the time these proceedings were instituted before the surrogate. This is evident from the fact that he had not thought it his duty to pay that sum, although he had sufficient funds in his hands at all times for that purpose, and the extent of the alleged deficiency had been known more than five years. Again, Merritt himself was cited as a creditor, for the purpose of determining whether he was entitled to this claim upon the estate. But instead of attempting to establish the claim in his own favor, by the proper testimony, he is called as a 'witness to obtain an allowance thereof in favor of the executor. As the executor had not paid the claim, he was not entitled to a credit therefor. If Merritt has proved that he has an equitable claim upon the funds of the estate, and the surrogate has not allowed such claim, he is the proper person to appeal from the decision of the surrogate thereon.

There was no evidence which could have justified the surrogate in crediting the executor with the $600 alleged to have been advanced to the executrix. The receipt produced was not given by Mrs. Rathbun in her character of executrix, neither was it given to him as executor. The legal presumption therefore is, that it was some private transaction between Kellett and Mrs. Rathbun. Probably it was a part of the amount due to her on account of her dower in the land, and with which he had previously credited himself in gross. If he had rendered his account under oath, as the surrogate should have required him to do in a case where infants were concerned, although the adult legatees did not require it, I presume he would not have credited himself with this $600 as a sum justly chargeable against the estate.

The evidence shows that the executor mixed the funds of the estate with his own, and loaned them out from time to time, on interest, without keeping any separate account thereof. This was a violation of his duty as executor, and renders him liable to pay interest on the funds. (Ram on Assets, 512, § 5.) The only doubt upon this part of the case is, whether the interest should not have been compounded, or computed by annual rents, so as to give the estate the benefit of the annual interest which the executor probably received. I also think there was sufficient in this case to justify the surrogate in decreeing costs against the executor, who had retained this large balance from those who were justly entitled to the same, and subjected them to the expense of this litigation.

The sentence and decree of the sarrogate must therefore be affirmed, with costs. And the appellant must pay the register of this court the balance of $2225,80, together with the interest thereon, from the 19th of August, 1830; to be distributed among the residuary legatees, rateably. He must also pay into court the amount allowed by the surrogate for costs and surrogate’s fees, and must pay to the respondents their costs on this appeal, to be taxed, And the respondents are to be at liberty to enrol the decree of affirmance here, and to have execution thereon out of this court, according to the course and practice of the court of chancery in other cases..

         This is now an order of course. 4th,'"1834. See 118th rule, as amended March


author: The Chancellor

text:
    A. R. Livingston vs. H. Livingston and others.
    The provisions of the 39 th rule are not applicable to the case of an answer to which the complainants cannot except for insufficiency.
    Where the whole equity of the bill is denied, it is no answer to an application to dissolve an injunction, that the defendant has also incorporated into his answer other matters, which are scandalous, or otherwise irrelevant.
    June 18.
    This was an application to dissolve an injunction, upon the coming in of the answer.

      C. M. Stebbins, for the complainant,
    objected to the bringing on of the motion, upon the ground that the ten days allowed by the 38th rule of the court for filing exceptions to the answer, had not yet expired. He cited Satterlee v. Bargy, (3 Paige's Rep. 142.)

      C. Bushnell, for the defendants,
    stated that in this case the complainant had waived the necessity of an answer on oath from the defendants. And he insisted that, the defendants had a right to make the motion at any time after the putting in of their answer, as the complainant could not except to the same for insufficiency.
   The Chancellor

said the provisions of the thirty-ninth rule were not applicable to the case of an answer to which the complainant could not except for insufficiency. That by the English practice, as sanctioned by modern decisions, the reference of an answer for impertinence was sufficient cause to be shown in answer to an application to dissolve the common injunction. But that arose from the fact that no exceptions for insufficiency could be filed until after the exceptions for impertinence were disposed of. (Hunt v. Thomas, 2 Anst. Rep. 591. Fisher v. Bailey, 12 Vez. 19.) That the reasons upon which the English practice had been adopted did not apply to the case of an answer to which the complainant had waived his right to except for insufficiency. That by the practice in this court, exceptions for scandal or impertinence and exceptions for insufficiency were to be taken at the same time and in the same manner. If, therefore, the whole equity of the bill was denied, it was no answer to the application to dissolve the injunction, that the defendant had gone further and incorporated in his pleading other matters, which were scandalous or otherwise irrelevant.

The motion was then disposed of on its merits.


text:
    Story vs. Brown, administratrix, &c.
    Where a party is required to bring in his account before the master, in the form of debtor and creditor, under the 107th rule, he must bring in his whole account, and for the whole time for which he is accountable, as established by the decretal order of the court.
    tThe account must also be accompanied by the usual affidavit of the party, that the account, including both debits and credits, is correct, and that he does not know of any error or omission in the account to the prejudice of any of the other parties.
    The master, upon the return of the first summons, should regulate the manner of executing the reference, and the several steps to be taken by the parties, so far as it can then be conveniently done; and at any subsequent attendance of the parties before him, he should give such further directions in relation to the proceedings as have become necessary in the progress of the reference.
    July 2.
    This was an application for an attachment against the defendants for not complying with the requisitions of a summons of the master requiring them to bring in their accounts before him, up to a certain period, in the form of debtor and creditor. The original bill was filed by John Brown, and his two sons, J. D. Brown and G. W. Brown, against the present complainant T. W. Stoi-y, to settle a partnership account between the parties, and to restrain him from proceeding against them at law. After an order of reference to take the testimony and state the several accounts between the parties had been entered by consent in that cause, reserving all other questions, John Brown died. Upon the application of Story, alleging that the surviving complainants in that suit were insolvent, he was permitted to file an original bill, in the nature of a supplemental and cross bill, against the survivors and the personal representative of the decedent, for the purpose of having but One account taken between the parties, and of charging the estate of John Brown with the payment of the balance, if any, which might be found due to Story upon the taking of such account. (See 2 Paiges Rep. 594.) Such a bill was accordingly filed, and afterwards a decretal order was made in both causes, reciting the former proceedings and referring it to the master to take proof of ah matters and things alleged, stated, and charged in the pleadings in the original and supplemental suits; the testimony thus taken before him to have the same effect as if taken before an examiner in the usual manner; directing that the master should also take an account between the parties in relation to the several matters stated in the pleadings, with the usual power to examine the parties on oath, and to compel the production of such books, papers and accounts or other writings as might be hi the possession, or power, or subject to the control of the parties or either of them, and which the master should think ought to be produced before him in talcing such account; and reserving all further questions and directions in relation to all or any of the matters in difference between the parties until the coming in of the report. Under this order of reference the complainant, Story, submitted his account in the form of debtor and creditor, up to the 6th of March, 1817, and took out a summons from the master requiring the defendants to bring in their accounts up to the same period, in the form of debtor and creditor. With this requisition the defendants neglected to comply.

      W. JV*. Dyckman, for the complainant.

      W. iM. Price <£• W. S. Sears, for the defendants.
   The Chancellor.

If the master is right in supposing that this case comes within the 107th rule of the court, and that. the several parties are required to bring in their accounts before him in the form of debtor and creditor, he erred in requiring the accounts to be exhibited up to a certain period only, and in receiving the account of the complainant without its being verified in the usual manner. Where a party is di= récted to account before a master, as contemplated by that rule, he must bring in his whole account, including debits and credits, and for the whole time for which he is held accountable, as established by the decretal order of the court. Such account must also .be accompanied by the usual affidavit of the party as. to the correctness of the several items on both the debit and credit side of the account, according to the best of his knowledge and belief, and that he does not know of any error or omission in the account to the prejudice of any of the other parties in the cause in which such account is exhibited, (Bennett’s Office of Master, 83. 2 Brown's Ch. Pr. 818. 2 Newl. Pr. 3 Lond. ed. 460.) In this case, however, there has been no decree settling the rights of the parties, or declaring what particular accounts should be taken before the master, or by whom the accounts should be rendered. But by the consent of both parties, it- has been referred to the master, to take the proofs in the cause, and to take and state an account between the parties in respect to the transactions stated -and charged in the pleadings. The accounts must necessarily be taken in connection with the testimony before the master. And the,nature and extent, of the accounts to be taken must, in a great measure, depend upon the facts proved by such testimony. I think,- therefore, the master erred in supposing that this was a case coming within the provisions of the 107th rule. The master, however, is authorized by the 102d rule to regulate the manner.in which the reference before him is to be executed. He may, therefore, require the respective parties, within such time as he may think reasonable, to exhibit in writing before him the several items of charge which they claim against the adverse party,.'so that it may be known to what points the examination of witnesses is to be directed, and to preclude such parties from making a claim afterwards for any further or other items, unless they shall furnish some reasonable excuse for the delay dr neglect. One. object of this rule was to prevent .the delay and expense •of a separate.summons and.attendance upon every proceeding in the .master’s office. The master should,- therefore, at the return of the. first, summons, regulate the manner ofexecuting ■ the reference, and the several steps to be taken by .the respeclive parties, so far as it can then conveniently be done. And at any subsequent time to which the reference may be adjourned, he should give such further directions as may be proper in relation to any other proceedings which have become necessary in the progress of the reference.

■ The motion for an attachment in this case must be denied. But as this was a new question, arising under one of the recent rules of the court, which the complainants’ counsel had some reason to suppose was applicable to the case, I shall not give costs to the adverse party.


text:
    James and wife vs. James and others.
    Where a testator devised a house and lot to his wife for life, with power to dispose of tho same by her will to their descendants in fee, with the power of selection as she might think proper; which devise, together with certain legacies were, by the will of the testator, to be in lieu of his wife’s right of -dower; and the testator then devised the residue of bis estate not before bequeathed and devised to his wife, to trustees, "in trust for the purposes of the will; and the widow afterwards elected to take her dower, instead of the provision made for her in the will; Held, that the whole legal and equitable interestin the house and lot, subject to the widow’s right of dower therein, descended to the heirs at law of the testator, and did not go to the trustees under the will.
    In a will of personal estate, a general residuary bequest carries to the residuary legatees not only what is not disposed of to others, but also whatever is not legally disposed of so as to pass to the persons intended as the ob- • jects of the testator’s bounty. It is otherwise as to real estate.
    Where a specific devise of real estate does not take effect, either from the incompetency of the devisee to take, or otherwise, it descends to the heir at law, as property not disposed of by the will.
    No decree can be made against infants upon the admissions of their guardian ad litem in the answer.
    This was a suit for the partition of a house and lot in the city of Albany, which by the will of W. James, deceased, was devised to his wife for life, with power to dispose of the same by will to the descendants of the testator and his said wife, as she might think proper. This devise, and certain specific and pecuniary bequests to his wife, were by the will of the testator declared to be in lieu and full satisfaction of her dower in his estate. The residue of his property the testator devised and bequeathed to trustees, upon certain trusts io the will expressed, as follows: “ I give, devise and bequeath to them, the said Gideon Hawley, James King and Augustus James, all my estate both real and personal of which I shall be possessed and entitled to devise at the time of my death, and not herein before devised and bequeathed to my wife, in trust to manage and dispose of the same, and to receive and apply the rents, issues and profits, proceeds, interest and increase thereof in the manner hereinafter expressed, &c. The widow elected to take her dower in the real estate of the testator, instead of the provision which was made for her in the will.

      James King, for the complainants.

      ■F. Griffin, for the defendants Barker and wife.

      J. V. L. Pruyn, for Augustus James and wife.

      J. Rhoades fy H. G. Wheaton, for the infant defendants.
   The Chancellor.

If the trustees under the will took no interest in the premises in which partition is sought, they need not be made parties; as they might demur to the bill, unless it was alleged therein that they had some legal or equitable interest in the premises, or at least that they claimed an interest under the will. The only questions, therefore, which arise on the bill and answers are, whether any thing passed to the trustees, under the general clause in the will devising the residue to them in trust. It is supposed by the complainants, and by some of the defendants "who have a common interest with them in supporting that construction, that the premises in question are excluded from the general devise to the trustees. The defendants Barker and wife, and the guardian ad litem of the infant defendants who are entitled to share in the general residue under the trusts of the will, insist that the devi'se to the wife having become void by her refusal to accept it in lieu of dower, the will must be construed in the same manner as if the specific devise had not been made.

It appears to be well settled that in a will of personal estate, a general residuary bequest carries to the residuary legatees not only every thing not disposed of in terms or by necessary implication, but also every thing which turns out not to have been legally disposed of so as to pass to the persons intended as the objects of the testator’s bounty. But it is otherwise as to a residuary devise of real estate. For if a part of the real estate is specifically devised, and the devise does not take effect, either from the incompetency of the devisee to take, from a partial revocation of the will, a lapse by the death of the devisee in the lifetime of the testator, or from the not happening of the contingency upon which as a condition precedent the devise was made or was to take effect, it descends to the heir at law as property undisposed of by the will. (Wright v. Hall, Fortesc. Rep. 182. Watson v. Earl of Lincoln, Amb. Rep. 325. Gravenor v. Hallum, Id. 645.) The case of Greene v. Dennis, (6 Conn. Rep. 293,) is analogous to the one now under consideration. In that case the testator devised a particular farm to the yearly meeting of Quakers of JVew-England, and gave the residue of his estate, not otherwise disposed of by his will, to hjs nephew, R. Green. The specific devise being declared void, it was held that the farm descended to the heirs at law of the testator, and did not pass to the nephew under the general residuary clause in the will. In the present case, the testator seems to have taken it for granted either that he had a right to bar the wife of her dower by a specific provision in lieu thereof or that she would elect to receive that provision. He therefore devised to the trustees the residue of his estate not therein before devised and bequeathed to his wife. So far as regards the life estate, therefore, which is devised to her in the premises, there can be no doubt, upon the law as settled for more than a century, that it descended to the heirs at law, and did not pass to the trustees under the general devise of the residue to the trustees.

The only difficulty I have found in this case relates to the reversion in the premises, after the termination of the estate devised to the widow; as to which there is a devise to her of a special power in trust, for the benefit of the descendants of the testator and his wife, with the right of selection. .Although this power was probably imperative, under the provisions of the revised statutes, if the widow had elected to take the devise and bequests to her in lieu of dower, yet the legal.estate in the reversion, until the execution of the power, would either have vested in the trustees under .the residuary devise to them, or have vested in the heirs at law of the- testator. (1 R. S. 729, § 59. Sugd. on Powers, 5 Lond. ed. 406.) . But as it was the evident intention of the testator that the devise of this power in trust, as well as the beneficial devise of the life estate in the premises, should depend upon the contingency of the. relinquishment of dower, the election of the widow.to claim her dower in the residue of the estate rendered the whole, of this devise inoperative and void. And if the legal estate in the reversion passed to the trustees, under the residuary bequest, they now hold the whole, legal and equitable interest in - such reversion as applicable to the trusts upon which .the general residue was devised. On the other hand, if the legal estate in the reversion descended to the heirs-at law, subject to the execution of the power, in trust, then, in the event which has happened, the several parties in this suit now hold such legal estate, as the heirs at law of the testator, discharged of the equitable lien of such trust power thereon.

To ascertain in whom the legal estate in the reversion of these premises would have vested, if the widow had elected to receive the provision made for her by the will in lieu of her ■ dower, it will be necessary to examine the several trusts created by this will, in connection with some of the provisions of the articles of the revised statutes relative to uses and trusts, and to powers. By the 95th- section (1 R. S. 734, and Laws of 1830, p. 387, § 11,) it is declared that a special power is in trust, when the disposition ■ which it authorizes is limited to be made to any person or class of persons, other than the grantee of such power.’ And by the 100th section it is provided that if the trustee of a power with the right of selection shall die, leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons .designated as objects of the trust. It is evident, therefore, that if the devise of this power in trust had not become void, by the election of the widow to claim her dower, whoever took the legal estate in the reversion would have taken it as a trust, subject to be divested by the execution of the power, by the will of Mrs. James, in favor of any of the lineal descendants of herself and the testator; and subject to the power of this court to decree a conveyance of the reversion to all such descendants, as tenants in common, if the widow died leaving the power unexecuted. That being the case, a direct and explicit devise of the legal estate in the reversion to the trustees being wholly disconnected with the objects of their trust, it would have been void and inoperative; and the legal estate would have vested in the heirs at law of the testator, by the operation of the 58th and 62d sections of the statute. (1 R. S. 729.) I therefore must declare in this case that in consequence of Catharine James, the widow’s having elected to claim her dower in the real estate of the testator, the whole legal and equitable interest of the decedent in the premises descended to his heirs at law, subject to her right of dower therein. And that the complainants are entitled to a partition thereof, according to the prayer of their bill.

It is not without some hesitation I have arrived at the conclusion that the election of the widow to take her dower in the estate has the effect to defeat the devise to her of a power in the trust, to be executed in favor of her decendants. But as all those who could claim an interest in the execution of the power, as the lineal descendants of the present Mrs. James and her late husband, are before the court as parties, the purchaser under a decree in this case will take the property discharged of any such equity. And if any of the parties are dissatisfied with my decision on this point, I should be much pleased if that decision could be reviewed by the appellate court.

As a part of the defendants are infants, no decree can be made upon the admission of the guardians ad litem in the answer. It must therefore be referred to a master to inquire and report as to the truth of the allegations in the complainant’s bill, and particularly whether Catharine James, the widow, has elected to take her dower in the real estate of her late husband, instead of the devises and bequests made to-her by the will; and to take proof of the complainant’s title, and report an abstract of the conveyances by which the same is held, and to ascertain and report the rights and interests of the several parties in the premises in conformity to this decision ; and whether the premises are so circumstanced that & partition thereof cannot be made without great prejudice to the owners. If the master arrives at the conclusión that a sale of the premises is necessary, he is also to ascertain and report whether any creditor not a party to this suit has a specific lien on the undivided share or interest of any of the parties by mortgage, devise or otherwise. And if the master is satisfied there are no such specific liens, he is also to ascertain and report as to the existence of any general lien or encumbrance by judgment or decree, &c. Upon the coming in and confirmation of the report, the complainants are to be at liberty, upon due notice to the adverse parties, to apply, either upon a stated motion day or at term, for such further order and decree in the premises as may be proper.


text:
    Lampman sv. Hand & Whaley.
    Upon an appeal from a vice chancellor to the chancellor, retaining fees for solicitor and counsel are proper charges.
    So also is a charge for abbreviating the pleadings and proofs for the use of counsel on the appeal.
    But a charge against the adverse party for making copies of the pleadings and proofs for the use of counsel, will not be allowed.
    July 10.
    This was an appeal from the decision of the taxing officer in reference to the taxation of the costs on an appeal to the chancellor from a decree of the vice chancellor. The items objected to, but allowed by the taxing officer, were a retaining fee for the solicitor and counsel on the appeal, and the charges for copies of the pleadings and case for counsel, and for abbreviating the pleadings and proofs for the use of counsel.
    T. Jenkins, for the appellant.

      S. Beardsley, for the respondents.
   The Chancellor.

Upon an appeal to the court fot- the correction of errors, from a decree or order of the chancellor, retaining fees to solicitor and counsel are allowed, although the solicitor and counsel may be, and generally are, the same who were engaged in the cause in the court below. (See 13th Rule of C. of Errors.) An appeal from a decree of a vice chancellor to the chancellor, is a new proceeding; as much so as an appeal from a decree or order of the chancellor to the court for the correction of errors. I can see no good reason why a retaining fee should not be allowed in the one case as well as in the other. And I believe it has been the uniform practice of the taxing officers to allow the same on an appeal from a decree of a vice chancellor. The retaining fees were therefore properly allowed in the present case.

The respondents were not entitled to charge the adverse party with the copies of the pleadings and case for the use of counsel; but the item for abbreviating the pleadings and proofs, for the use of counsel on the appeal, was properly allowed. (De Caters v. La Farge, 2 Paige’s Rep. 411.) The charges for copies of the bill, answer, and case, amounting together to the sum of $12,11, must be deducted from the bill as taxed; and neither party is to have costs on this application.


author: The ChancelLor.

text:
    Vermillyea and others vs. Odell and others.
    Proofs cannot regularly be taken as to one of the defendants in a cause, to whose answer a replication has been filed, until the answers of the other defendants have been put in, or the bill has been taken as confessed against them.
    Where a cause is at issue as to one of the defendants, by the filing of a replication to his answer, and the complainant has neglected to proceed against the other parties, so that such defendant cannot proceed to examine witnesses and close the proofs, he may move to dismiss the complainant’s bill for want of prosecution.
    Where the complainant files a replication to the answer after he is apprized of the necessity of an amendment of his bill, he precludes himself from making such amendment.

      In a case where a special application to the court for leave to makefile amendment is necessary, the complainant should obtain an order to extend the time for filing the replication, until after the decision of the court upon the application to amend.
    July 16.
    This was an appeal from a decision of the vice chancellor of the first circuit, dismissing the complainants’ bill as to the defendant M. Mitchell, and refusing leave to amend the bill, both as to him and other defendants,

      J. Tallmadge, for the complainants,

      W. Silliman, for the defendants.
   The ChancelLor.

The cause was not in a situation to proceed to the taking of proofs as to the defendant Mitchell, until the answers of the other defendants had been put in, or the complainants had procured the bill to be taken as confessed against them. By the former practice of the court it was frequently necessary for the defendant, in nearly every stage of the suit, to expedite the proceedings of a tardy complainant, by an application to dismiss bis bill for want of prosecution. The evils of this practice were remedied to some extent by the new rules, which permitted the defendant to proceed with the cause, in certain stages of the suit, as well as the complainant; and by depriving the latter of particular privileges, on his neglecting to take certain steps in the cause within the time allowed by the rules of the court. There are, however, several cases in which it still becomes necessary for a defendant to apply to dismiss the bill, for the purpose of speeding the cause. One of those cases is where the cause stands for hearing on bill and answer as to some of the defendants, and where the complainant has neglected to procure the answer of other defendants; so that the cause is not in readiness for hearing as against them. In that case, as the defendants who have answered cannot notice the cause for hearing on bill and answer, as to themselves, until it is ready for a hearing as to the other defendants, they are now permitted to apply to speed the cause; and even put an end to the suit, unless the complainant can furnish some reasonable ex-«usé for the previous delay in his proceedings. The principle jof the rule is also applicable to the present case; where, by a similar neglect on the part of the complainant, a defendant to whose answer a replication has been filed, is unable to proceed and close the proofs in the cause. The vice chancellor was therefore right in dismissing the bill as against the defendant Mitchell for want of prosecution, unless the complainants had shown an excuse for their delay in proceeding against the other defendants, and that they ought to be permitted to amend their bill upon the usual terms of paying the costs of the application to dismiss.

I do not understand the vice chancellor to have decided that a sworn bill could not be amended. He says the motion cannot be granted, because it is a sworn bill, and the complainants have not brought themselves within the rule as laid down by this court in the cases of Rogers v. Rogers, (1 Paige's R. 424,) and Whitmarsh v. Campbell, (2 Id. 67.) By this he undoubtedly meant that no sufficient excuse had been given for not applying for these amendments when it was first discovered that they would be necessary; which must have been as early as February, 1832, when Mitchell’s answer was put in. In this he was unquestionably right, as no excuse was given for the neglect to apply before. Besides, the complainants had precluded themselves from making an amendment, by filing a replication to the answer of Mitchell after they were fully apprized of the necessity of an amendment of their bill. In such a case, instead of filing a replication, which is wholly inconsistent with the idea of an amendment of the bill, they should have applied for an order to extend the time for putting in the replication until after the decision of the motion for leave to amend.

The order of the vice chancellor must therefore be affirmed, with costs, to be paid to the defendant Mitchell. But without prejudice to the right of the complainants to apply to the vice chancellor for leave to dismiss the bill, as against the defendant Harris, without costs. As to any of the other defendants who have been served with process, and have appeared, the complainants are at liberty, of course, to dismiss their bill upon payment of the necessary costs of those defendants» and also to dismiss it without costs, as to any of the defendants who have not appeared. •


text:
    Leacraft, executrix, &c. vs. Demprey.
    A defendant may plead, answer and demur to the same bill; but these several defences must each refer to and in terms be put in as a defence to a separate and distinct part of the bill.
    If an answer commences as an answer to the whole bill, it overrules a plea or demurrer to any particular part of the bill, although such part is not in fact answered.
    Where a plea which constituted a full defence to a particular part of the bill was disallowed on the ground of a technical defect or informality in the manner of pleading, the court permitted it to stand for an answer; and prohibited the complainant from calling for a further answer, by exceptions, as to that part of the bill.
    July 16.
    This was a bill filed by an executrix- for an account and payment of a portion of the rents and profits of certain household premises which accrued during the lifetime of the testatrix. The defendant, intending to plead an account stated with the testatrix, in bar of the account and payment of the rents and profits prior to a particular period, and to answer as to the residue, put in her plea and -answer, commencing with the answer, in the usual form of an answer to the whole bill. And after answering so much as was not intended to be covered by the plea, she pleaded the account stated, in bar to so much and such parts of the bill as sought an account of the rents and profits, up to and including the 1st of February, 1831; the time of the alleged settlement.

      D. B. Tallmadge, for the complainant,
    contended that the answer covered the whole claim of the bill; that the plea could not be resorted to, to ascertain how much of the claim of the complainant was met by the answer; that the plea of an account stated must cover strictly the whole ground it professed to, leaving nothing to inference ; and that it must contain averments of facts ; not merely the evidence from which facts may be inferred.

      Charles Edwards, for the defendant,
    contended that the plea of the account stated was good, there being neither error nor fraud alleged; that as this plea would have been good as between the original parties, it was good against the complainant, (Gee v. Lewis, Colle's P. C. 416;) that the answer did not go to the whole bill; that the plea was sufficiently minute to be binding as a bar, (Sewell v. Bridge, 1 Ves. sen. 297; Willis v. Jernegan, 2 Atk. 252 ;) that the complainant could not now amend her bill for the purpose of charging error. (Dawson v. Dawson, 1 Atk. 1.)
   The Chancellor.

The plea in this case is a sufficient defence to so much of the bill as seeks an account and satisfaction of the rents and profits of the premises, in the bill mentioned, up to and including the first of February, 1831. But it is defective in a point of form; it being overruled by the answer. It is not necessary to decide the question whether any of the facts stated in the answer do in fact cover the part of the bill intended to be covered by the plea. I am inclined to think, however, they do not. But by referring to the commencement of the answer, it will be seen that it purports to be an answer to the whole bill, without excepting those parts to which the defendant has pleaded in bar, both as to the discovery and relief. The defendant may plead, answer and demur to the same bill; but each of these defences must refer to, and profess, in terms, to be. put in as a defence to separate and distinct parts of the bill. Thus, if an answer commences as an answer to the whole bill, it will overrule a plea or demurrer to any particular part of the bill, although the defendant does not in fact answer that part of the bill which is covered by the plea or demurrer. Lord Redesdale says, if the plea is to part of the bill only, and there is an answer to the rest, it is expressed to be an answer to so much of the bill as is not before pleaded to, and is preceded by a protestation against the waiver of the plea. (Mitf. PL, 4 Lond. ed. 300.) In practice, the plea or demurrer usually precedes the answer, which in that case commences thus : “ And as to the residue of the said bill, this defendant not waiving his said plea, but relying thereon and saving and reserving to himself) &c, for answer thereto, or to so much thereof as he is advised is material,” &c. (Lube’s Eq. PI. 390.) I see no objection, except as to the convenience of reference, in permitting the answer to precede the plea, as has been done in the present case. But then the pleader must, by a reference to the part of the bill which is subsequently covered by the' plea, or otherwise, show that it is an answer to the residue of the bill only. As the answer in this case commences and concludes as an answer to the whole bill, in the same manner as if it was not intended to be followed by a plea as to part, in point of form the plea is overruled by the answer, and cannot therefore be allowed.

As this plea, however, is a full defence to so much of the bill as it professes to cover, and is merely informal in consequence of the inadvertence of the solicitor in not excepting that part of the bill in the commencement of his answer, it would be a "matter almost of course to permit him to amend, on payment of costs. And as the cause must go to a hearing upon the other parts of the bill, it will be equally beneficial to the defendant if I permit the plea to stand for an answer. I shall therefore direct it to stand for an answer; declaring it to be a good defence, if established by proof, to so much of the bill as seeks for an account and satisfaction of the rents and profits up to and including the 1st of February, 1831. And the complainant is not, by exceptions, to be permitted to call for an account of those rents and profits, or for any further answer as to that part of the bill. This, however, will not preclude the complainant from excepting to the answer to the other parts of the bill, if such answer is insufficient. (Coke v. Wilcox, Mosel. Rep. 74.) And the defendant must pay the costs of the argument of the plea.