text:
    Collins vs. Collins.
    Where the husband and wife are living together pending a suit for a divorce a mensa ct thoro, and the wife is in no danger from personal violence, the court will not break up the family by placing the children under the exclusive control of either party.
    If the wife is entitled to the income of property bequeathed to her separate use during coverture, and the husband obtains possession of it for the purposes of the trust, he will be decreed to pay to her the income.
    This was a bill filed for a divorce a mensa et thoro.
    1829. Nov. 17th.

      J. Radcliff,

    on the part of the complainant, moved for an order requiring the defendant to allow her a reasonable sum for counsel fees to enable her to carry on this suit, and also a suitable maintenance pendente lite; and that the complainant be permitted to receive to her own use the income of her separate estate, and that she also have the custody of the children. Mr. Radcliff cited, in support of the motion, Dumond v. Magee, (4 John. Ch. R. 318 ;) Turell v. Turell, (2 id. 391;) Havaland v. Myers, (6 id. 25 ;) Denton v. Denton, (1 id. 364;) Bedell v. Bedell, (1 id. 604;) Barrere v. Barrere, (4 id. 187.)

      J. Hoyt,

    opposed the motion, and read the answer of the defendant, in which the charges of ill usage contained in the bill were fully denied; he also read an affidavit which stated that since the commencement of this suit the complainant had voluntarily accompanied the defendant on a journey of pleasure, during which time she had cohabited with him. Mr. Hoyt admitted the right of the complainant to an allowance for a counsel fee if she insisted upon proceeding with the suit, but denied her right, under the circumstances, to any other allowance. He cited Denton v. Denton, (1 John. Ch. R. 364.)
   The Chancellor.

The allegations of ill usage made by the complainant are denied by the defendant; and to show that the complainant is under no necessity of a separate maintenance for herself and children pending the litigation, the defendant states that since the filing of the bill in this cause she has voluntarily accompanied him on a jaunt of pleasure to Albany and the Springs, during which time they cohabited together. Under such circumstances it is to be regretted that this family difficulty cannot be compromised, as well for the interest of both parties as on account of their children. There is nothing in the facts before me that can authorize the making of an order which will tend to widen the breach or to break up the family, by separating either the father or mother from the children. It is admitted by the defendant’s counsel that the complainant is entitled to a reasonable sum to enable her to carry on this suit, if she insists upon going on with it. The case of Pritchard v. Ames and Pritchard, (Turner’s R. 222,) shows that in the end she will be entitled to the income for life of the property in the hands of her husband, which was bequeathed by her father to her separate use for life, with remainder to her children. The husband has been in the habit of allowing her interest on this sum in quarterly payments of one hundred dollars each up to the first of May last, since which time it has been suspended. It is said the fund is invested in real estate which is unproductive; if so the wife will be entitled to have it sold, and to have the amount invested for her separate use for life, agreeably to the bequest of her father. If the husband consents to allow her the interest as heretofore, I do not think it proper to make any other order as to the separate estate pending this litigation. If he is unwilling to do this, the real estate in which her property is invested must be sold, and the money brought into the assistant register’s office and invested, to abide the final decree in this cause ; and in the mean time she must have the income thereof. The defendant must also advance to her or her solicitor two hundred dollars for the purpose of enabling her to go on with this suit, if she shall be advised so to do.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Gardner vs. Heyer and others.
    Where the testator lived and cohabited with M. S. in a house provided and furnished by him, and while so living with her had by her four natural children, one son called John, and three daughters, who were with his knowledge and consent baptized by his name and were educated and acknowledged by him as his children, and who were the only persons ever recognized by him as his children ; and by his will the testator gave to his son John $10,000, payable when he arrived at 24, and to each of his daughters $3,000, payable at 21; and directed his executors to pay to M. S. $65 quarter yearly during her life if she remained unmarried and had no more children ; and appointed his executors guardians of his children during their minority ; it was held that this was a sufficient description of the testator’s natural children by M. S. as the legatees intended by him.
    Wills in favor of natural children are to receive a like construction as those in favor of other persons.
    As a general rule, a devise to children, without other description, means legitimate children ; and if the testator has such children, parol evidence cannot be admitted to shew that a different class of persons was intended.
    It is always proper to look into circumstances dehors the will to ascertain whether there are any persons answering the description of the legatees named in the will.
    If there are no such persons, then the situations of the testator’s family may be proved to enable the court to ascertain the persons intended by the testator as the objects of his bounty-
    December 1st,
    The bill in this cause was filed by the brother and heir at law of John Gardner deceased, against the surviving executor and trustee under the will of the latter, and certain persons claiming to be the general legatees named or described in the will. The complainant alleged that the will was obtained by fraud from the testator, at a time when he was wholly incompetent to make a will; and he prayed that the will might be declared void, and be ordered to be delivered up to be cancelled ; that the trustees and executor might be directed to deliver up the possession of the real estate to the complainant, and account for the rents and profits of the same, and for the personal estate which had come to his hands. The bill also stated, divers acts of mismanagement of the funds by the executors and their agent. On filing the bill an order was obtained to shew cause why an injunction should not issue agreeable to the prayer of the bill, and to restrain the survivng executor from interfering with the estate, or from paying over any part thereof to the supposed legatees under the will, and that in the mean time a temporary injunction issue.

      W. P. Wood, for the complainant.

      W. Kent fy R. Bogardits, for defendants.
   The Chancellor.

The answers and affidavits on the part of the defendants shew that neither the solicitor, nor complainant who swore to the truth of the bill, had any foundation for their belief as to the incompetency of the testator, or the fraud in obtaining the will. The injunction cannot be sustained on that ground; even if the court had the power to set aside the will as to the personal estate after it had been proved in ample form before the surrogate and after the complainant who contested it there had for a- period of ten years neglected to appeal from that decision. But a new ground is now taken, which is, that if the will is valid, the legacies to the natural children of the testator are void because there is no sufficient description of the legatees who were intended by the testator. It probably would be a sufficient answer to this objection, that no foundation for relief on that ground is laid in the bill. If the allegations in this bill are true, there never was any valid will; and there is nothing in the bill to show that the complainant makes any claim, as the party beneficially interested under the will, in consequence of the insufficient description of the legatees. The whole scope of the bill as well as the relief prayed is to set aside the will as absolutely void, in consequence of the incompetency of the testator and the fraud of the defendant. But as the question as to the right of the natural children under this will has been raised and fully argued, it may be proper to look into it for the purpose of saving trouble and expense to the parties in the further proceedings which may take place.

From the facts disclosed it appears that the testator was never married ; but had for a long time lived and cohabited with M. Smith, in a dwelling house owned or provided by him and furnished at his expense ; during which time, between June, 1806, and March, 1815, she had by him five children. AH these children were, with the knowledge and consent of the testator, baptized by his name. One of them died in infancy, and the other four, a son and three daughters, were by him placed at school and acknowledged as his children, and were generally reputed as such by his friends. He died a bachelor, and these children by M. Smith are the only persons he ever acknowledged or recognized as his children. By his will he gave to his son John $10,000, to be paid to him when he arrived at the age of 24, the interest in the mean time to be applied to his maintenance and education, He also gave to each of his daughters $3000, payable at the age of 21 ; and the interest in the mean time to be applied to their education and support. He directed his executors and trustees to pay $65 to M. Smith, quarter yearly during her life, if she remained single and had no more children. He devised and bequeathed all the residue of his real and personal estate to his executors and trustees and the survivor of them in fee, in trust to pay two thirds of the income thereof to his son John, and one third to his daughters during their lives, with remainder to their issue. And he gave cross remainders to the. survivors in case any of the children should die without issue. He also appointed the executors and trustees, or the survivor of them, guardians of his children during their minority; and earnestly requested that the utmost care should be taken of their morals and education. From the . facts which I have stated, it is impossible for me to doubt that the son and three daughters of M. Smith, the reputed children of the testator, were the intended objects of his bounty. And if there is not some unbending rule of law which makes it the duty of the court to punish the innocent and unoffending offspring for the sins of their parents, I do not see how these legatees can be deprived of the property which was intended to be given them by the testator. I have looked into the several cases which were referred to on the argument, and find nothing which places wills made in favor of natural children on a different, footing, as to construction, from those made in favor of other persons. As a general rule, a devise to children without any other description, means legitimate children; and if the testator has such children, parol evidence cannot be received to show that a different class of persons was intended. But in this case as in all others, it is proper to look into circumstances, dehors the will, to see whether there are any persons answering the description of the legatees in the legal sense of the term ; and if it appears there are no such persons, it is then allowable to "prove the situation of the testator’s family, to enable the court to ascertain who were intended by the testator as the objects of his,bounty. The whole law on this subject was so fully examined by the late Sir Thomas Plumer, in Beachcroft v. Beachcroft, (I Mad, R. 430,) that it would be a waste of time to go over the same ground. The bequest in that case was “ £ 5000 to each of my children ; and 6000 sicca rupees to the mother of my children. ” There was no other description of the legatees in the will. The testator died a bachelor, leaving five natural children by an East Indian woman. It was proved, dehors the will, that he had “recognized them as his children, and had sent three of them to England for an education. In that case the legacies were decreed to them.

In the case before me the facts are much stronger to shew who were intended. The testator could not have intended legitimate children which he might have by a future marriage ; for one of the objects of his bounty is described as his son John, and the others as his daughters. It would require too great a stretch of credulity to suppose the testator not only contemplated a marriage and the birth of issue, but that he also anticipated he should have but one son, who would be named J ohn, and that all the other children of the marriage would be daughters ; that he should die before they arrived of age, and that they would all need testamentary guardians. To give such a construction to this will would indeed be reversing the rule that the court should endeavor to ascertain and carry into effect the intention of the testator. It would be following a technical principle for no other purpose but to defeat the manifest intent of the testator.

There is no doubt as to the legal and equitable rights of the children of Mr. Smith under this will. The rule to shew cause why a general injunction should not issue, must be discharged with costs ; and the temporary injunction must be dissolved.


text:
    Hallett and Davis vs. Hallett and others, executors, &c.
    Where land is devised subject to the payment of legacies, and the devisee dies before payment, the legatees have a specific lien upon the income of the land after his death as well as upon the land itself, and their legacies must be paid out of the same in preference to the creditors and legatees of such devisee.
    If the estate and the income which accrued after the death of the devisee should prove insufficient for the payment of the legacies charged thereon, the balance, to the extent of the rents and profits received by the devisee in his life time, will constitute a debt against the residue of his estate, to be paid in a due course of administration.
    Where the legatees seek a sale of the estate tó satisfy the legacies charged thereon, the devisee or his heirs cannot require them to litigate a claim of third persons which if valid is paramount to the title under the will of the devisor.
    In such cases, the right acquired under the will, whatever it may be, must be sold subject to all paramount claims thereon.
    The rule that all persons materially interested in the subject matter of the litigation should be made parties to the suit, may be dispensed with when it becomes extremely difficult or inconvenient.
    But it cannot be dispensed with where the rights of persons not before the court are so inseparably connected with the claims of the parties litigant that no decree can be made without impairing the rights of the former.
    Where there are many persons having claims on a fund, and the shares of a part cannot be determined until the rights of all the others are settled and ascertained, as in the case of residuary legatees, or creditors of an insolvent estaté, all must be made parties; or they must have an opportunity of coming in and substantiating their claims before any distribution of the fund can be made.
    In such cases, if the fund is in court or under the exclusive control of the parties actually before the court, it will be sufficient for any of the parties having a separate claim upon the fund, to file a bill in behalf of themselves and all others who may elect to come in under the decree.
    It seems that one residuary legatee may file a bill in behalf of himself and all others standing in the same situation, and that it is not necessary to make them all actual parties to the suit.
    Where a bill is filed by a creditor for the payment of a particular legacy, if the defendant admits a sufficiency of assets, a decree for the payment may be made without any general account of the estate or notice to others creditors or legatees.
    But if it appears by the answer that there is a deficiency of assets, the decree must be for a general account and distribution of the fund among all those who may come in and establish their claims under the decree.
    If the complainants do not proceed with due diligence under a general decree for an account, any person coming in trader the deeree will be permitted to prosecute the suit, and may file a supplemental bill if necessary. Where separate legacies are charged upon real estate in the hands of the heir or devisee, each legatee has a lien on the estate, which cannot be divested by a sale under a decree to which he is not an actual party. In such cases one legatee cannot file a bill in behalf of himself and the others, but all must be made parties, either as complainants or defendants.
    If the names of any of the legatees cannot be ascertained, or for any other reason it is impossible to bring all the legatees before the court, a decree may be made for the sale of the estate subject to the claims of such legatees ; but to dispense with them as parties, a foundation therefor must be laid in the complainant’s bill.
    December 1st.
    Naomi' Dunbar, by her will, devised her real and personal estate to her son Abraham S. Hallett, charged with the payment of the legacies given in the will; and she appointed him, together with her son Richard S. Hallett, her executors. Among other legacies, she gave to her grand children Thomas C. Hallett and Hannah Hallett $1300 each, with interest from the death of the testatrix; payable when they became of age. The complainant Thomas C. Hallett became of age in 1816, and his sister Hannah in 1818. Hannah Hallett died after she became of age, and the complainant Edna Davis was appointed her administratrix. Abraham S. Hallett proved the will and took possession of the property in 1816, and continued in possession until his death in 1826. The other executor renounced the execution of the will. Part of the legacies charged on the real and personal éstate of Naomi Dunbar have been paid, but a considerable portion thereof, including the whole amount due to Thomas C. Hallett and his sister, remains unpaid. A part of the property of the testatrix was a house and lot in Water-street in New-York, which was worth about $800 per annum. Abraham S. Hallett by his will directed his executors, or such of them' as should assume the executorship, to sell his real and personal estate and pay his debts, and then to divide the residue among his relations, in the manner therein stated; and he gave the one sixtieth part of his estate to the complainant Thomas C. Hallet,. and appointed the defendants and J. R. Willis his executors. Willis renounced, but the defendants proved the will and took possession of the estate ; and have since that time received the rents of the real estate devised to their testator by Mrs. Dunbar.
    The complainants filed their bill in this cause, in behalf of themselves, and all others of the legatees of Mrs. Dunbar who should come in and contribute to the expenses of the suit, against the defendants as executors of Abraham S. Hallett, for the purpose of compelling a satisfaction of the legacies, given by the will of Mrs. Dunbar, out of the estate in their hands. The principal facts in the case were admitted by the defendants; but they alleged that'there was a dormant claim against the house and lot in Water-Street which might affect the title of Mrs. Dunbar, in consequence of .which they could not sell it and make a good title to the purchaser ; that the debts of Abraham S. Hallett exceeded the amount of his personal estate ; that a part of the rents of the real estate had been applied to the payment of the legacies given by the will of Mrs. Dunbar, and other parts thereof had been applied in the administration of the estate of Abraham S. Hallett generally; and that no separate account thereof had been kept. The cause was heard on bill and answer ; and the question whether the necessary parties were before the court was then for the first time raised.

      P. Ruggles, for the complainants,
    cited Davoue v. Fanning (4 John. Ch. R. 199;) Brown v. Rickets, (3 id. 553.)

      W. Slosson, for the defendants,
    cited Newman v. Johnson, (1 Vernon, 45.)
   The Chancellor.

The parties claiming under the will of Mrs, Dunbar. cannot call upon the heirs ’ tif Brewerton to litigate with them their title to the estate under a claim paramotint to-hers/ If the complainants had made them parties for that purpose, they probably would have demurred to the bill. The cases, of Pelham v. Gregorey, (1 Eden’s Rep. 522,) and Devonsher v. Newenham, (2 Sch. & Lef. 199,) show that such a bill could not be sustained. The property must be sold subject to their, rights, whatever they may be.

Who are necessary parties to a suit ? is frequently a question of difficulty ; and it is impossible to reconcile all the various decisions on this subject, either with established principles or with each other. But there are certain general rules which must serve as a guide tq the court on a subject that in some measure depends, upon the exercise of a sound discretion. It is a general rule in equity that all persons materially interested iii the subject matter of the suit, either ás complainants or defendants, ought-to be made parties, in order that a complete decree may be made which will bind the rights of all, and prevent a useless multiplication of suits. But to this rule there are many exceptions. It is a riile adopted for the' convenient administration of justice, and is dispensed with when it becomes extremely difficult or inconvenient. ■( Wendell v. Van Rensselaer, 1 John. Ch. R. 349.) It is on the . ..principle of this exception that the circuit courts of the United States, which are courts of limited jurisdiction with respect to parties, are enabled to ■ exercise equity jurisdiction in many cases where,.a strict adhérence to the rule would compel the complainants to resort to the state courts. (Elmendorf v. Taylor, others, 10 Wheaton’s Rep. 152. Harding v. Handy, 11 Wheat. R. 103.) But this exception does not extend to those cases where the rights of persons not before the court are so inseparably connected with the claims of the parties litigant, that no decree can be made without materially affecting the rights of the former. (Mallow v. Hinde, 12 Wheat. Rep. 193. Ward v. Arredondo & others’ 1 Paine’s Rep. 410. 1 Hopkins’ Rep. 213, S. C.) If there are many parties standing in the same situation, as to their rights or claims upon a particular fund, and where the shares of a part cannot be determined until the rights of all the others are settled or ascertained, as in the case of creditors of an insolvent estate or residuary legatees, all the parties interested in the fund must in general be brought before the court, so that there may be but one account, and one decree set. tling the rights of all. And if it appears on the face of the complainant’s bill that an account of the whole fund must be taken, and that there are other parties interested in the distribution thereof, to whom the defendants would be bound to render a similar account, the latter may object that all who have a common interest with the complainants are not before the court. In these cases, to remedy the practical inconvenience of making a great number of parties to the suit, and compelling those to litigate who might otherwise make no claim upon the defendants, or the fund in their hands, a method has been devised of permitting the complainants to prosecute in behalf of themselves, and all others standing in the same situation who may afterwards elect to come in and claim as parties to the suit, and bear their proportion of the expenses of the litigation. If such parties neglect to come in under the decree, after a reasonable notice to them for that purpose, the fund will be distributed without reference to any unliquidated or unsettled claims which they might have had upon the same. But if the rights of such absent parties are known and ascertained by the proceedings in the suit, provision will be made for them in the decree. (Anonymous, 9 Price’s Rep. 210.) In either case the court will protect the defendants against any further litigation in respect to the fund. (Farrell v. Smith, 2 Bull & Beat. 337.)

In Brown v. Rickets, (3 John. Ch. Rep. 553,) Chancellor Kent seems to suppose the case of residuary legatees an exception to the general rule that one claimant of the fund may file a bill in behalf of himself and all others having a common interest; but every reason which could possibly be urged against permitting one residuary legatee to sue for himself and all the others, without mating them actual parties, was equally applicable to the case then before him for adjudication. The case of Parsons v. Neville, (3 Brown’s Ch. Rep. 365,) referred to by him as establishing that principle, was not a case of legatees, but of devisees ; and the particular nature or object of the suit is not stated. The dictum of Lord Eldon, in Cockburn v. Thompson, (16 Ves. 327,) probably refers to this case ; as I can find, no decision of Lord Thurlow in which the principle is applied to the case of a suit brought by a residuary legatee of the personal estate, or by one who is entitled to a distributive share thereof as the next of kin. The correctness of the opinion of Chancellor Kent on this particular point is questioned by my immediate predecessor, in the case of Kettle & wife v. Crary, (1 Paige’s Rep. 417, note.) And in a case before Sir John Leach, in 1822, where the cestuis que trust were numerous, he permitted a part to file a bill, in behalf of themselves and the others, against the trustees. (Manning v. Thesiger, 1 Sim. & Stu. 106.) In the case of Davoue v. Fanning, (4 John. Ch. R. 199,) the complainant made a claim upon, the real estate; and the suit was not instituted on behalf of himself and the other residuary legatees. I can see no reason for excepting residuary legatees from the application of the rule, and can find no case in which the question has arisen and where it has been directly decided. that a part may not sue in behalf of themselves and the others. The anonymous case before cited (9 Price, 210,) shows that their rights will be protected under the decree whether they come in or not; and from the case of Farrell v. Smith, (2 Ball & Beat. 337,) it appears the executors will be protected, under the usual decree for an account and distribution of the fund, if by any accident the existence of a person having such a right was not known until after the fund had been fully administered. I see no objec- - tion to the distribution of the fund on a bill thus framed, which is not equally applicable to a similar distribution under a decree upon a bill filed in behalf of a creditor or ordinary legatee ; in which cases it is well settled that the residuary legatees or next of kin need not be made parties to the suit. I apprehend the reason why one creditor, or one legatee who has a specific claim against the estate, may sue in his own name only, and yet that a decree may be made on such bill for a general distribution of the fund, to be this: It does not appear upon the bill that there are not sufficient assets to pay all the creditors or legatees; and therefore no general account and distribution of the fund may be necessary. I understand the rule in that case to be, if the executor admits a sufficiency of assets, there is to be a decree for the payment of the particular debt or legacy, without any general decree for an account. Hence the ordinary prayer in the bill that the defendant may admit assets, or set out an account in his answer; and if he admits assets he is not obliged to set out the account. (Per Sir Thomas Plumer, V. C., Cooper’s Rep. 215.) But if by the answer of the defendant it appears there will be a deficiency of assets so that all the creditors cannot be paid in full, or that there must be an abatement of the complainant’s legacy, the court will make a decree for the general administration of the estate, and a distribution of the same among the several parties entitled thereto, agreeable to equity. If several suits are depending in favor of different creditors or legatees, the court will order the proceedings in all the suits but one to be stayed, and will require the several parties to come in under the decree in such suit, so that only one account of the estate may be necessary. (Ross v. Crary, 1 Paige’s Rep. 416. Goate v. Fryer, 2 Cox’s Cas. 201.) But to prevent collusion between the complainant and the executor, if the defendant has not set out an account of the estate in his answer, he will not be permitted to restrain other creditors or legatees from proceeding in their suits, until he has made an affidavit as to the amount of the fund in his hands; which fund he may be required to pay into court; (Paxton v. Doug lass, 8 Ves. 518.) And if there is any unnecessary delay in the prosecution of the decree, any person coming in to claim under it may apply for leave "to prosecute the same, and may file a supplemental bill if necessary. (Dixon v. Wyatt, 4 Mad. Rep. 392. Edmunds v. Ackland, 5 Mad. Rep. 31.) In all-these cases the proceedings are in rem. And the parties who have the exclusive control of the fund being before the court, the chancellor takes the administration, thereof into his own - hands, and directs due notice to be given to all parties interested to come in and exhibit their claims and settle their priorities. The court having directed the distribution of the fund and thus deprived the executor or trustee of all control over the-same, it will hot permit those who have neglected to come in under the decree to proceed in a-suit against the executor or party from whose hands the fund has thus been taken-for distribution. But as a decree can only bind and be made effectual against" property which is under the exclusive control of those actually before the court, a suit cannot be brought.by one legatee in behalf of himself and all others whose legacies are charged on the real estate, for a sale thereof. The lien of the other legatees on the land would not be divested by ■such a proceeding, unless they came in and made themselves parties to the suitand therefore no good title could be made to a purchaser under the decree. Thus in Morse v. Sadler, (1 Cox’s Cas. 352,) where the estate was devised to the de-. fendant, charged with the payment' of a number of legacies to different individuals, and one of the legatees filed a bill in behalf of himself and the. others "for the'purpose'of charging the estate in the hands of the devisee,-Lord"Kenyon decided that all the legatees must be actual párties to the suit; and directed the cause to stand - over for that purpose. This case seems to be directly in collision with that of Brown v. Rickets before referred to; where Chancellor Kent permitted one legatee whose legacy was charged on the real estate to sue in behalf of himself and the other legatees'. But on ■examination it will be seen that a sale under the decree in the latter case gave a perfect title to the purchaser, discharged •of the liens of the other legatees; and leaving them tó come in ¡and take their share of -the fund under the decree or obtain nothing: whereas a decree in the first case would only have authorized a sale of the interest of the devisee, discharged of the lien of the complainants’ legacy ; and the purchaser must have taken it subject to the lien of the other legatees, whose interest could not be affected by the decree. In Brown v. Rickets, the estate was devised to the executors, iu trust to sell and pay the legacies. They had a perfect right to sell for that purpose, and their-vendee would acquire a valid title under the will of the testatrix discharged of all liens. The decree in that case directed the executors to execute the trust, by selling the estate ; and the court thus obtained the absolute control of the whole fund, to be distributed under its direction agreeably to equity.

On examination of the case now before me, one part of it appears to come within the principle of the decision in Morse v. Sadler and another part within that of Brown v. Rickets. The estate was devised to Abraham S. Hallett in fee, charged with the payment of divers legacies. He could not sell the property so as to give a good title to the purchaser ; but his vendee would have been bound to see that the legacies were actually discharged out of the purchase money. ( Horn v. Horn, 2 Sim. & Stu. R. 418.) If the devisee was alive and "now before the court, it would still be necessary to make all those legatees actual parties to the suit, to enable me to make a valid decree binding their rights. If there was any substantial reason why they could not be made parties, the court, to prevent a failure of justice, might make a decree for a sale of the property subject to their lien. But that cannot be done unless a sufficient foundation for such a decree is contained in the bill; as it would subject the estate to the expense of other suits and the executors to a double account. Whether it will be absolutely necessary to make all the heirs at law as well as the legatees of Abraham S. Hallett parties defendants, must in a great measure depend upon the powers given to the executors under his will; whether they take the legal estate by implication or have a mere authority to sell ? And if they have the power to convey the legal estate so as to give a good title to the purchaser ; whether the complainants and the other legatees of Mrs. Dunbar are willing to entrust the sale of the property and the distribution of the funds to them 'l These are questions not properly before me at this time, as the rights of the several parties and the powers and duties of the executors under the last will are pot set forth in the pleadings. There is very little doubt of the right of the complainants to make all these persons parties, whether it is absolutely necessary or not. If the estate is exhausted by an unreasonable- refusal of the executors of Hallett to sell the property and pay these legacies, which are clearly the debts of their testator and chargeable thereon, they may be personally charged with the costs which the legatees have been compelled to make.

The cause must stand over ; with liberty to the complainants to amend their bill by making all proper persons parties thereto, either as complainants, defendants or otherwise, as they shall be advised. They are also to be at liberty to set forth such other facts relative to the rights of any of the parties, or the powers and duties of the executors under the last will,- or in relation to any other matter, as they may be advised to insert in their bill by way of amendment. And the defendants are at liberty to put in' a further answer to such amendments ; and the question of costs on such amendments is for the present reserved.


text:
    Dunham vs. Winans and Dunham.
    Where one of two defendants was examined as a witness for the complain-, ant, subject to all just exceptions, and his testimony upon the hearing was rejected upon the ground of interest, and a final decree has been made in the cause a rehearing will not be granted to enable the complainant to release the interest of the witness and to re-examine him.
    Afterka decree in the cause, it requires a very special case to justify the court in opening the proofs, even to establish a new fact which a party has neglected through inadvertence to prove.
    A new trial or re-hearing is never granted to enable a party to obtain cumulative testimony, or for the purpose of contradicting witnesses examined by the adverse party.
    January 7th.
    This cause was heard on pleadings and proofs as against the defendant Winans, and a final decree in his favor was made therein in May, 1829.' D. R. Dunham, one of the defendants, had been examined as a witness for the complainant, against his co-defendant, subject to all just exceptions. His testimony was objected to at the hearing upon the ground of interest, and was finally rejected by the Chancellor upon that ground.

      R. Sedgwick, in behalf of the complainant,
    now presented a petition for a re-hearing for the purpose of enabling her to release the defendant D. R. Dunham, and to re-examine him as a witness.

      S. A. Foot, for the defendant Winans.
   The Chancellor.

This application is novel in its character and dangerous in principle. The objection to the witness on the ground of interest was distinctly raised and argued by counsel at the hearing, and the decree was not made until nearly two months afterwards. Five months after the final decree, the complainant for the first time offers to release the witness, and asks to set aside the decree and open the proofs in the cause, so that he may be re-examined. The object of this testimony is to support that of another witness for the complainant, and to contradict the positive answer of the defendant Winans and the evidence of a witness examined on his part. After a decree in the cause, it must be a very special case which will justify the court in opening the proofs, even to establish a new fact which a party has neglected to prove through inadvertance ; but a new trial or a re-hearing is never granted to enable a party to obtain cumulative testimony, or to contradict the witnesses examined by the adverse party. The conclusion at which I arrived upon the hearing was that even with the testimony of this witness the result of the case would not be altered. It is not necessary now to examine as to the correctness of that conclusion, as the incompetency of the witness is admitted by the counsel who asks for a re-hearing ; and I am satisfied that it would be dangerous to open the proofs after a final decree in such a case.

The petition for a re-hearing must therefore be dismissed with costs.


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    Dyckman and McChain vs. Kernochan and others.
    An original bill cannot be sustained either by the parties or privies to a former suit for an injunction to restrain proceedings under a decree in such suit.
    An officer out of court has no right to allow an injunction to stay the proceed, ings under a decree in such a case.
    Where an order to stay the proceedings in a cause pending in this court is proper the party must apply to the court upon petition.
    January 28th.
    The bill was filed in this cause to set aside a decree obtained by the defendants in this court against divers persons who are not parties to the suit, and to restrain the present defendants from carrying that decree into effect, upon the ground that one of the former defendants died before the decree. The master having allowed an injunction for that purpose.

      B. F. Buttler, for the defendants,
    now moved that the same be dissolved ; upon the ground that there was no equity in the complainants’ bill to sustain the injunction.

      E. Livingston, for the complainants.
   The Chancellor.

The present complainants do not shew such an interest in the mortgaged premises as will authorize them to interfere with the decree in the former suit. Dyckman became the purchaser, pendente lite, of all the interest of G. McChain in the mortgaged premises; but it does not appear that either he or S. S. Seymour, under , whom he claimed, ever had any interest in the premises decreed to be sold. Even if an interest existed in G. McChain or his grantee, which rendered the decree irregular as against that right after the death of the former, the assignee has not pursued the proper course to correct the irregularity. This is not a bill of ■ review, and it is -not the practice of this court to permit an injunction bill to be' filed, either by parties or privies to the proceedings in a former suit, to restrain pro-; ceedings under the decree. The court can control its own process and the proceedings of its own officers, without an -original hill being filed for that purpose.

The master went beyond his authority in allowing an injunction to restrain the defendants from carrying,into effect a decree of this court. If any order was proper, the present complainants should have applied by a petition to the Chancellor. The injunction must be dissolved, with costs.


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    Larkin vs. Mann and others.
    Where partition suits were pending at the time the revised statutes went into operation, the subsequent proceedings therein must conform to such statutes.
    Partition suits in this court may be commenced either by bill or petition, and the course of practice prescribed by the revised statutes in relation to proceedings in the common law courts must be adopted here, as far as is practicable, except in cases where a different course of practice is authorized or prescribed by law.
    If the suit is commenced in this court by bill, the complainant must take out and serve a subpoena as in ordinary suits.
    No proceedings can be had against an infant after service of the subpoena, until a guardian had been appointed and has filed the requisite security.
    Where the right of the complainant is not admitted by the answer, he is bound to make such proof of his title as would entitle him to a recovery in ejectment.
    If the bill is taken as confessed, the proof of the complainant’s title may be made before a master, on a reference. But if an issue of fact is joined in the cause, the complainant may make the necessary proof, and produce the abstract of the conveyances, before the examiner.
    The court may in its discretion award a feigned issue to try the question of title, as in ordinary cases in this court.
    In chancery it is not necessary that the shares assigned to the several parties should be exactly equal; as the parties who receive more than their share of the estate may be required to make a pecuniary compensation to those who receive less;
    The bill in this cause was’filed previous to the first day of January, 1830, for the partition of lands, in the county of Schoharie. The bill, having been taken as confessed against all the defendants, was set down for a final decree at the present term.

      W. Reynolds, for the complainant,
    now moved for a decree that partition be made, and that .commissioners be appointed for that purpose.
   The Chancellor.

By the 22d section of the title of the revised statutes relative to the partition of lands, (2 R. S. 320,) if the default of any of the defendants, whether known or unknown, has been entered, the court is directed to require proof of the complainant’s title and an abstract of the conveyances by which the same is held ; and all proceedings in partition suits which were pending on the first of January last, or commenced afterwards,, must be conducted according the provisions of that title. Although most of those provisions relate particularly to proceedings in the common law courts, the same course of practice must be adopted here, so far as those provisions can be carried into effect in the ordinary course of proceeding in this court, except in the special cases provided for in the eighty first section. (2 R. S. 329, § 80, 81.) The suit in this court may be commenced by bill, or petition, either of which must contain the requisites prescribed in the fifth section of that title, and must conform to the 174th rule of this court; and if any of the parties are infants, guardians must be appointed and give bonds, as directed in the fourth section. If the complainant proceeds by petition, it may be served or notice thereof may be published in the manner prescribed in the tenth, eleventh and twelfth sections ; and if the suit is commenced by filing a bill, he may proceed by subpmna as in ordinary suits in this court. But no proceeding can be had against an infant, after service of the subpoena, until a guardian has been appointed arid filed the requisite security. If the rights of the several parties as stated in the bill or petition are not admitted by the answers of the defendants, the complainant must make such proof of his title as would be sufficient to enable him to recover in ejectment. If an issue of fact is joined in the cause, it may be determined in the ordinary manner of deciding questions of fact in this court, or the court may award a feigned issue for the trial thereof. If the bill or petition is taken as confessed against all or any of the defendants, the proof of title required by the twenty-second section may be made on a reference to a master for that purpose, if the cause is not heard on pleadings and proofs as against any of the defendants. But in. the latter case the complainant may make proof of his title before the examiner, and produce it with the abstract of the conveyances by which it is held, at the hearing. Where none of the defendants, or a part only, have appeared, and answered and admitted the rights of the several parties as stated in the bill or petition, and the others have made default, the complainant is entitled to a common order of reference under the 177th rule. This order must direct the master to take proof of the title of the complainant in the premises, and of the several matters set forth in the bill or petition ; and to ascertain and report particularly what share or part of the premises belongs to each of the parties to the suit, so far as the same can be ascertained, and the nature and extent of their respective estates or interests therein ; and that he also report such proof and an abstract of the conveyances by which the title to the premises is held. A further provision may also be inserted in this order when necessary, directing the mas- , ter, if requested by either of the parties on the reference, to examine and report whether the premises or any part thereof are so circumstanced that a partition thereof cannot be made without great prejudice to the owners thereof; and that he state the particular facts and circumstances, if any, which will render a division of the property impracticable, or prejudical to the interests of the several parties.

In proceeding on this branch of the order of reference, it will be the duty of the master to take into consideration that in this court it is not necessary that all the shares should exactly correspond in value ; but that one part may be directed by the decree to make compensation to another for equality of partition. 2 R. S. 330, § 83.)

This case must be referred to a master residing in the county of Schoharie to report upon the title, &c. before any further order can be made therein.

         Under the first clause of the 78th rule, as amended in April, 1830, a further clause must now be added to this common order, directing the mas. iter, if he decides that a sale is necessary, to inquire as to specific liens.


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    Prentice and others vs. J. Achorn and S. Mead.
    No person can make a valid contract while he is deprived of his reason by intoxication.
    But voluntary drunkenness will not protect a person from liability for torts, or from punishment for crimes committed while in that situation.
    Where the defendants obtained from the ancestor of the complainants a conveyance of his property, when he was in a state of intoxication, they were charged with the costs of the suit to set aside the deed.
    The complainants filed their bill in this cause to set aside a conveyance made by A. Achorn to the defendant Mead of his farm in the county of Chenango, in trust for the defendant Jemima Achorn who was living with the grantor as his wife at the time of the conveyance. A. Achorn, previous to his death, made hi's will, by which he gave one fourth of his real and personal estate to the defendant Jemima, during the time she remained his widow, and the residue of his estate he gave to his daughters, the complainants, for life, with remainder to their children in fee. The bill alleged that the deed was obtained by fraud and undue influence, at a time when the grantor was incapable of transacting business; and that Jemima was not his legal wife, she having imposed herself upon him as a widow, and married him while she had a husband still living. The cause was brought to a. hearing upon pleadings and proofs, and was submitted on written arguments, when the chancellor ordered a feigned issue to be made up, and tried by .a struck jury of the county of Chenango, to ascertain whether the deed was duly executed by Achorn, at a time when he was sober and capable of transacting business, and with a full knowledge on his part of its nature and contents. The jury found a verdict for the complainants on the trial of that issue, and the cause was again set down for a hearing upon the equity reserved.

      B. Bleecker, for the complainants.

      J. A. Collier, for the defendants.
   The Chancellor.

As the trial took place before the new rules were adopted the court may dispense with the provision requiring a case to be made; as no evidence was introduced except the written depositions previously before the court. If, upon the depositions before me on the first hearing, there had been such a decided weight of evidence in favor of the defendants as to authorize me now to set aside this verdict on the same testimony, the feigned issue would not have been directed. I consider the testimony as making out a pretty strong case of fraud and imposition on the part of the defendant Jemima; and in which the character of a public officer, who had certified to the acknowledgement of the deed and had also sworn to its due execution, was deeply implicated. Under such circumstances I was unwilling to make a decree directly in opposition to his official certificate and his oath, without giving the defendants a right to be heard before a jury of the county where he resided. The parties have chosen by a written stipulation to submit the question to that jury, without any new evidence on either side ; and on this point I can only add, that they have decided in the same manner I should have done had I determined the question of fact without their aid. The deed was fraudulently and improperly obtained from the grantor, at a time when he was by reason of intoxication wholly incompetent to execute a valid conveyance. That a person deprived of his reason in consequence of voluntary intoxication is incapable of making a valid contract, is a proposition too plain to admit of doubt. The law on this subject is ably examined by Judge Prentiss in Barret v. Buxton, (2 Aiken’s Rep. 167.) Our statute treats intoxication as a species of insanity, which, when it becomes habitual, renders the drunkard an unfit person to be entrusted with the management of his estate. Voluntary drunkenness will not protect a person from liability for. torts, or from punishment for crimes committed while in that situation; but it renders him for the time incapable of exercising reason, without which he cannot make a valid contract. This deed must be set aside, and the defendants must be charged with the costs of this litigation; and with the rents and profits of the. complainants’ property, which they have unjustly withheld, under the deed.' '•

The defendant Jemima Achorn insists that if the ' deed is . get as¡¿e spe jg entitled to dower in the premises conveyed, and also to the use of an undivided fourth part of the premises, under the will. From the evidence in this case I am satisfied that she had a husband living at the time she married Achorn, in April, 1814. The testimony of the mother and sister of Kelsey, that he was .at- Catskill about .the time arid after they had heard of her second marriage, is sufficient to rebut any presumption of death from his previous absence. In addition to this, the defendant Jemima Acnorn told her sister-in-law that she had herself seen him after that time. The marriage being illegal and void, she .has no claim for her dower in the premises.

The will of Achorn is set out in the coriiplainants’ bill and they do not seek to set it aside on the ground that the testator was incompetent On the contrary, it is a part of the title under which they claim. Although the defendant Jemima Achorn claims this particular part of the estate'in fee under the deed, she does not .intend to reject the devise to her by the will. If the conveyance was void, this was a part of the real estate of the testator, in which she took a life estate, determinable on her marriagé after his death.- Whether he was imposed upon or not at the time of his rparriage, it is evident he must have known previous to the execution .of the will that her former husband had been heard of since that time. ' The expressions in the will must be taken in reference to the fact that he knew, they were not legally married. He designates her by the title of “my wife Jemima,” arid gives her the use of one fourth of the property while she remained his widow. It was therefore his intention to give her the property by that name, until she should marry after his death, and for life if she remained single. If, as suggested by the complainants’ counsel, she has married since the death of Achorn, her estate under the will is terminated. As that question was not raised by the pleadings, and no evidence has been given in relation to it by either party, the decree must be so framed as not to preclude the parties hereafter from showing a determination of her estate under the will by a marriage previous to the decree. In the mean time I can only direct an account of the rents and profits and the immediate delivery of the possession of three undivided fourth parts of the premises; leaving the complainants to recover possession of the other fourth, and the mesne profits thereof, in an action of ejectment or otherwise, as they may be advised, if her estate under the will is determined.

There must be a decree declaring the deed fraudulent and void; directing a release by the defendants of all right conveyed to them by the same; and perpetually enjoining them from asserting any right or claim under that conveyance. And a reference to this decree may be entered by the county clerk in the margin of the record of the deed in his office. The decree must also declare that the defendant Jemima was not the lawful wife of Achorn, and is not entitled to dower in his estate; but that she was by virtue of his will entitled to the use of one fourth part of his estate so long as she remained unmarried after his death. It must direct the defendants to deliver to the complainants, immediately on production of a copy of the decree, the peaceable possession of three undivided fourth parts of the premises mentioned in the deed; and that they account to the complainants, before a master in the county of Chenango, for the rents and profits which they have received or might have received for the use of three fourths of the premises since the death of Achorn, an d for all damage or waste which they have done or suffered to be done to the premises, and that the master allow interest as shall be equitable ; and that on the coming in and confirmation of the master’s report, the defendants pay to the complainants or their solicitor the amount reported due, with their costs of this suit to be taxed, and that they be at liberty to enforce this decree by execution. The decree is to be without prejudice to the right of the complainants to sue for a recovery of the other undivided fourth of the premises, and the mesne profits thereof, as they may be hereafter advised.


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    In the matter of Cooper and wife, infants.
    Where the guardian entered into a speculation with the husband of his ward, who was also an infant, in relation to her estate, and obtained a mortgage thereon from both, the court removed the guardian from his trust, and ordered the mortgage to be delivered up and cancelled.
    It seems that the insolvency of the guardian and one of his sureties is also a sufficient reason for the removal of the guardian.
    February 16th.
    This was an application on the part of these infants to remove Thomas E. Drake from the guardianship of the wife, upon the alleged grounds of insolvency and misconduct. From the report of the master, to whom it was referred to ascertain the facts, it appeared that the guardian of the wife had sold an establishment for the manufactory of band boxes to the husband, who was an infant, and had obtained from him and his wife a mortgage on her property to secure the payment of the purchase money; and it also appeared from the report of the master that the guardian was irresponsible, and that one of his sureties was insolvent.

      J. Rhoades, for the petitioners.

      H. Bleecker, for the guardian.
   The Chancellor.

The application to remove the guardian from his trust must be granted. It appears from the testimony taken before the master, that there is a serious difficulty existing between the guardian and the husband of his ward, arising out of the improper conduct of the former, in trading with the husband, who was also an infant, and ap-, propriating the wife’s property to carry into effect those speculations. The present controversy is the necessary result of such a violation of duty by the guardian, and might reasonably have been anticipated. If he did not know his duty, he ought never to have been appointed guardian; and if he has wilfully violated it, he ought to be removed. The fact of his own insolvency and that of one of his sureties is also another sufficient reason for his removal from the trust.

Samuel W. Seaton must be appointed the guardian of each of the petitioners, on his executing to each a bond in the usual form, with two sufficient sureties to be approved by master B. Clark, and in such sum as he shall direct; and on producing a certificate of the register or assistant register of this court that such bond is filed, Drake must deliver over to the new guardian of the wife, under the direction of the same master, all property in his possession, or under his power or control, belonging to his late ward, and must deliver up and cancel the mortgage which he has taken upon her estate. He must account before the master in relation to the guardianship, and pay over to the new guardian the balance if any which may be found due ; and the question of costs on this application is reserved until the coming in of the master’s report.


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    Marsellis vs. Thalhimer and others.
    An unborn child after conception is to be considered in esse for the purpose of enabling it to take an estate, or for any other purpose which is for the ben. efit of the child if it should afterwards be bom alive.
    But, as it respects the rights of others claiming through the child, if it is bom dead, or in such an early stage of pregnancy as to be incapable of living, it is to be considered as if it never had been bom or conceived.
    Where the mother dies before the birth of the child, and the latter is delivered by the cesarean operation, it is considered in existence before its birth for its own benefit to take the estate of the mother by descent, but not for the benefit of the father to enable him to hold as tenant by the the curtesy.
    Children bom within the first six months after conception are presumed to be incapable of living, and therefore cannot take and transmit property by descent unless they actually survive long enough to rebut that presumption.
    The party who claims property through the child is bound to establish the fact that it was bom alive; and if the child never breathed there is no le. gal presumption in favor of the fact.
    Feb. 16th,
    This was an appeal from the sentence and decree of the surrogate of Rensselaer county, on the settlement of the account of the administration of the estate of Gilbert Marsellis deceased. The only question presented for the decision of the surrogate or of this court was whether the appellant, the widow- of the i intestate, was entitled to the whole or only one half of the personal estafe,.under the statute of distributions. ■ At the death of ttie intestate he had ho children, but the proctor for • the appellant insisted that she was entitled to. the whole estate; to one third thereof as the widow and.to the residue as-the mother óf-a child of which she was. ensient at the time of her husband’s death. From the testimony .before the surrogate, it appeared' that about two months after-the-death of her husband the appellant was delivered .of a full grown child, which never- .breathed. No proper means were used to resuscitate the -child, so as to enable medical men to determine whether it' could, have been resuscitated. after it's birth. , _. '

      J. D. Willard fy S. G. Huntington, for the'.appellant,1
    contended that, the child having been born, the presumption was that it was born alive until the contrary was proved, and that the onus probandi in this respect lay upon the appellees; that the weight of testimony establishes the fact that the child was born alive; that a child in ventre sá mere was a life in being to all intents and^purposes, either as it regarded its own benefit or that of otherpersons, except in the case of a.descent at common law. In support of these positions the counsel cited Thelusson v. Woodford, 4 Ves.. 227, 293, 4, 5, 6, 7, 308, and the cases referred to in note 1 to that case.-p. 227; the opinion of Justice Buller at p. 322, 3 -and 4; the opinion of the master of the rolls at’p. 334. 5 ánd 6-; and. Toiler’s. Law of Executors, 31,300. . . : ; ■ '

      Lansing <$-'Frothingliam, for the appellees.
    The appellant in order to recover the whole of the personal estate must shew the birth of an heir capable of inheriting. To enable a child to. inherit, it is necessary that it should be bora alive, and proved' so to be born alivefor mortuus exitus non est exitus. (1 Beck’s Medical Jurisprudence, 175.) The proof'necessary to establish this-fact, is clearly laid down-in the cases of'tenant by the curtesy, where, to enable the tenant to take, it must .be proved that the child was heard to cry, and that by those who actually heard it, and not by those who learned it by hearsay. (1 Cruise on Real Property, p. 112, tit. 5, ch. 1, s. 20. 2 Black. Comm. 127. 1 Beck’s Med. Jurisprudence, 172, 175.)
    In this case the proof is positive that the child was born dead. Both the women who were present swear positively that the child "was born dead; the first, because it was born with its mouth open, and the second because she did not see it breathe. And the existence of the first of these symptons and the absence of the other are stated by a very eminent writer on medical jurisprudence as strong evidence of the child’s being born dead. (1 Beck’s Med. Jurisprudence, 248.) The same writer states that “ Still born infants, or those who die instantly on being delivered, are not unfrequently observed to open, their mouth, <fee.; may not these be merely the relaxation of a contracted muscle or the stimulus of atmopheric air on a body unaccustomed to it dec. (1 Beck’s Medical Jurisprudence, 177.)
    By the law as it regards a tenant by the curtesy it is necessary that there should be issue born alive, which was capable of inheriting, dec. (1 Beck’s Medical Jurisprudence, 175.) It cannot be contended that there is any ground to consider this as a child born alive.
    It then becomes necessary to examine, I. What rights are acquired by a child previous to its birth and while in its mother’s womb ? A child in ventre sa mere is, for many purposes, supposed in law to be born: it is capable of being a legatee, of receiving the surrender of a copy hold, and it may have a guardian appointed, (fee. (1 Black. Comm. 130, n. 9.)
    We contend that in all these and the other cases cited from the books, the taking of the child is for its own benefit solely, and on the condition of its being born alive.
    Lord Hardwicke,in 2 Atkyns, p. 117 and 118, says: “ The occasion of making the statute of distribution is stated at large in Edwards and Freeman, and I now take it to be fully settled that this act is to be construed by the rules of the civil law, &c.; and as to the civil law, nothing is more clear than that this law considered a child in the mother’s womb absolutely born to all intents and purposes, for the child’s own benefit.” The case just cited was one under the Englishstatute of distributions, of which ours is a copy. But in that case the posthumous' child was herself the complainant, and the reasons assigned shew, conclusively that it was for her benéfit alone that she inherited ; for Lord Hardwick further says: • “ It has been admitted that the debt of nature which the father owes, to provide for all his children, will extend to posthumous children.” (2 id. 116.)
    Where is the necessity of a provision: for a- child born dead V “For the civil’law-for the benefit. of the infant .reputes a child in its mother’s womb in me same condition as if it were .born.” (Bacon’s Abr. p. 123, tit. Infancy and Age, C.) To-enable' the child after its birth to reap the benefit.of these principles, it is necessary it should be born - perfectly alive. (5 T. R. . 64, Grose, J., quotation, made in Doe ex dem. Lancashire v. Lancashire.)

    So by the Roman- law, to enable the. infant to succeed to property, it is necessary ’ that it should, be perfectly alive. Sivivus perfect est. - (1 Beck’s Medical Jurisprudence, 174.) " The French Code, -725; 906, cited in Beck’s Medical Jurisprudencé, interprets to words life, or being born alive as- being, according to the most distinguished French jurists .and physicians; complete and "perfect respiration. (1 Beck’s Med. Jurisprudence, 174.)
    ■Let us now see how the rights of the child are considered Or what notice is ‘ taken of it when born ’ dead. In the case "of the King v. De Brouquens, (14 East’s R. 276, 278,) it is decided under .the bastardy act, that unless the child is born alive there' is’ no bastard. ' Lord Ellenborough, Ch. J. in . that case says, “ In order to come under the. denomination of a' bastard, must not the child be born alive 1 All the several statutes assume the birth of a child,-which of course must be born alive.” "Grose, J. in the same cause says, •“ No dpad . substance is the-object of legislative provision in any of the. acts.” ' ' '

      It may be' said, that an infant in ventre sa mere takes by descent. It is so. But in that case the presumptive heir may enter and receive thé. profits for his own use till the"birth of the child.” (3 Wilson’s R. 526.) “ Where a person died , leaving his wife ensient, the common law, &c. casts the freehold upon the person who is then heir. But when the posthumous child is born, his guardian may take possession, &c. and in such a case a posthumous child is not entitled to any profits received before his birth, because the entry of the heir was congeable till the posthumous child was born. ( 3 Cruise on Real Property, p. 385, tit. 29, ch. 3, § 12.) These are cases relating to real estate, but they clearly shew that though the child for its own benefit takes by descent in ventre sa mere, until its birth the inheritance is not vested, but may be taken by the presumptive heir ; and if the child is still born the inheritance never vests.
    The appellant claims as heir at law.
    Possession is the evidence of title to personal property.
    Where in this case is the possession of the infant ancestor that will entitle the mother heir to the inheritance 1 The proviso to the statute of distributions is, “ That if after the death of a father any of his children shall die intestate without wife or children,” &c.
    To entitle the mother as heir, the child must have died, and this proved by legal evidence. How can it be proved to have died without shewing that it first lived ? and of this there can be no evidence.
    The case of Thelusson v. Woodford, (4 Vesey, jun. 227,) was strongly relied upon in the court below. That was a case arising upon the construction of a will, and we have not been able to discover any thing in it that militates against the principle contended for by the appellees, that a child in ventre sa mere acquires rights for its own benefit solely, to become perfect on condition of its being born alive.
    The case in East before cited, and decided in A. D. 1811, shews in what light a dead child is viewed in legislative acts.
   The Chancellor.

It is at this day a well settled rule of law relative to successions, and to most other cases in relation to infants, that a child in ventre sa mere, as to every purpose where it is for the benefit of the child, is to be considered in esse. Thus in Doe v. Clarke, (2 Hen. Black. R. 399,) where the devise was to every child of C. which should be living at the time of his death, a posthumous child of C was held entitled under the devise, . In Miller v. Turner, (1 Ves. sen 85,) a posthumous child was held entitled, under, a provision in'the marriage articles for every child who should j¡vjng at tjje pf the father.- In Hale v. Hale, (Free. in.Ch. 50,) Beale v. Beale, (lPeere Wms. 245,) Northby. v. Strang, (id. 342,) Burdet v. Hopegood, (id. 486,) Rawlins v. Rawlins; (2 Cox. Ca. 425,) and Thelusson v. Woodford, (4 Ves. 227,) the same rule is recognized'.' In' Trower v, Butts, (1 Sim. & Stru. R. 181,) Sir John Leach went still further,, 'and held that under a bequest, to all the children of a nephew of'the testatrix born in her life time, a child of the nephew in. ventre sa mere,'1 at the death - of the " testatrix, and- which •was not born for several months.after, was included, and was entitled to 'ari equal portion with the other children. | ,

It was for .Some time doubted' whether such a child could take a contingent remainder before its birth. That'question was finally settled by ; the decision of the house of lords, in which Lord Chancellor Somers took the lead against the decisions which had been previously made on this subject by the king’s bench and common pleas.' It,is now the settled law both in England and here, that the infant after conception, but before its birth, is in esse for the purpose of - taking the remainder or any other estate or’ interest ■ which is"for the benefit of the infant. ■ (Stedfast v. Nicoll, 3 Johns. Ca. 18, Swift v. Duffield, 5 Serg. & Raw. 38.)

The broad' and" unqualified language which has been used by some* of the judges, has induced the appellant’s counsel to suppose íhé unborn child was to be' considered in existence fo,r ‘every purpose whatever, whether for its own benefit or that of others. That" it may be considered in existence for the benefit,.of others, in some cases, may perhaps be. ■ admitted ; as' in the' case mentioned by BuIIer, justice, (4 Ves. 323,) of an estate given to a third" person during the life of an infant in ventre sa mere. But it must' be recollected, that the' existence of the infant as a real person before birth is a fiction of law, for the purpose of providing for and protecting the child, in the hope and-'expectation that it will be born alive and be' capable of enjoying. those rights which are-thus■ preserved for it im anticipation, The rule' has been derived from the civil law; and the constant struggle in the courts has been between that rule and certain principles of the feudal law, which required the heir to be capable of taking an Immediate and beneficial interest in the estate. Especially under the statute of distributions must we resort to the civil law for the purpose of determining who are to take under its provisions.

Previous to the statute directing the grant of administration to the next of kin, the ordinary was in the habit of distributing the estate according to the rule of the civil law; but after the making of that statute, the temporal courts held that the administrator was not bound to make distribution of the residue; and as often as the spiritual courts attempted to compel such distribution, a prohibition was granted. The statute of distributions was therefore a legislative determination of the question in favor of the civilians. And in Walles v. Hodson, (2 Alk 117,) Lord Hardwicke says, I now take it to be fully settled that this act is to be construed by the rules of the civil law.”

Although by the civil law of successions, a posthumous child was entitled to the same rights as those who were born In the life time of the decedent, it was only on the condition that they were born alive, and under such circumstances that the law presumed they would survive. The rules on this subject are found in Domat, in the Napoleon Code and in the Civil Code of Louisiana. Children in the mother’s womb are considered, in whatever relates to themselves, as if already born; but children born dead, or in such an early state of pregnancy as to be incapable of living, although they be not actually dead at the time of their birth, are considered as if they had never been born or conceived. (Civil Code of Louisiana, art. 28, 29. Code Napoleon, art. 725, 966. Do-mat Prel. B. tit. 2, § 1, art. 4, 5, 6; pt. 2 lib. 2, tit. 1, § 1, art. 6, 7.) In the article last cited Domat says, “ Still born children are not counted in the number of children who succeeded. And although they were alive in their mother’s womb at the time the successions which concerned them fell, yet they have no share in them; for they are considered in the same manner as if they never had been born.” Children born within the first six months after conception, are cong¡dere¿ by the civil law as incapable of living; and therefore, although they are apparently born alive, if they do not in fact survive so long as to rebut the presumption of law, they cannot inherit so as to transmit the property to others. (Code Napoleon, art. 312, 725, 906. Code of Louisiana, art. 205. Dig. lib. 38, tit. 16, 1. 3, § 12 ; & lib. I, tit. 5,1. 12. Domat Prel. B. tit. 2, § 1, art. 5.)

I have not been able to find a case in the English or Amer- ■ ican reports in which the precise question now before me has arisen. The rule of the civil law is however clear and explicit; and as the case must be one of frequent occurrence, the fact that such a claim has not before been made is strongly opposed to the right now insisted on by the appellant. In the analogous case of a tenancy by the curtesy, it is well settled that the child must be born alive in the life time of the mother, to entitle the father to the estate. And even the' delivery of the child alive, by the ccesarean operation, after the death of the mother, is not sufficient. In that case, therefore, the rule holds that the unborn child may take the estate for its own benefit, but is not to be considered as in existence for the benefit of another person.

The question as to what is sufficient evidence that a child was bom alive, and capable of living, so as to enable it to inherit property and transmit it to others, is ably examined by Doct. Beck, whose work on medical jurisprudence is the best treatise of the kind which has been published in this country or in England. (1 Beck’s Med. Jur. 172.) Testing the evidence of what took place at the birth of the child, by •the reasoning of Doct. Beck and the opinion of the physician who was examined before the surrogate, I am satisfied that no court is authorized to decide affirmatively that the child was bom alive. There is no legal presumption in favor of the fact; and as the mother claimed by descent from the child she held the affirmative and was bound to establish her right by legal proof.

The decision of the surrogate was therefore correct in awarding one half of the estate to the collateral heirs of the decedent; and his sentence and decree must be affirmed with costs.


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    The Canajoharie and Palatine Church vs. Leiber and others.
    Whore a person contracts with the members of a religious community to convoy land as the, site of a church, and the society are afterwards regularly incorporated under the act, and the church is built on the premises, the court will decree a conveyance of the property to the corporation, according to the agreement previously entered into with the individual members of the society.
    But where the person holding the legal estate has expended his own money in building the church previous to the incorporation of the society, the court will not compel him to give up his legal claim to the estate until his1 equitable claim is satisfied.
    Februaryl6th.
    In 1818, Leiber and Ehle, two of the defendants, owned a tract of land in the village of Canajoharie, including the church lot in question in this cause. The defendants and divers other persons at that place associated for the purpose of building a church, and Leiber and Ehle agreed to give the lot for that object. Leiber, and Failing the other defendant in this cause, together with three others, were appointed a building committee, and to obtain and collect subscriptions for the church. During the building of the house, Leiber and Failing expended $667,33 over and above the amount of their subscriptions, which was credited and admitted to be due by the associates on the 5th of June, 1819. In December thereafter the society was incorporated by the name of “ The Canajoharie and Palatine Church.” Leiber and Failing have frequently since the incorporation applied to the trustees to pay or secure to them the above debt, which the trustees refused to do. Leiber, who considered himself under an equitable obligation to obtain the payment of Failing's share of the debt, conveyed one half of his legal estate in the church lot to him to secure such payment. Subsequently Leiber became entitled to the whole debt, by assign-' ment from Failing. After repeated ineffectual attempts to obtain either payment or security from the corporation, a partition suit between the defendants was commenced in the Montgomery common pleas, and an order for a sale of the premises was obtained in that court. The complainants then filed their bill in this cause to restrain the proceedings in the partition suit, and for a conveyance of the church lot from the defendants to the corporation.
    The defendants Ehle made no claim to the premises, and consented to convey his share thereof to the complainants. The other defendants consented to convey their half of the lot upon receiving payment of the debt due them as two of the building committee; and they averred that they had always been ready and willing to make such conveyance upon receiving such payment or security for the same. The cause was heard on pleadings and proofs.

      M. T. Reynolds, for the complainants.

      8. D. Hewlett, for Leiber and Failing.
   The Chancellor.

Although the agreement to convey this lot was made before the society was incorporated, yet in equity the agreement ought to be carried into effect with the corporation, which now represents the rights of the original associates. This principle is recognized in a late case before the supreme court of the United States, (Beatty v. Kurtz, 2 Peter’s "Rep. 566.) The defendants do not deny this equitable principle; but as they have no legal remedy against the complainants for a debt which became due before they were a corporation, they insist it is inequitable that the corporation should have a conveyance of the lot without paying or securing that claim. It is pretty certain that, the defendants cannot recover this debt against the corporation in a court of law. The authorized agents of the complainants have never agreed to pay it since they were incorporated, but on the contrary have uniformly refused to do so. I think it is perfectly equitable and just that it should be paid by the corporation, who have had the benefit of the labor and adVances of the defendants. A .religious corporation, of all others, should be the last to insist upon a claim so manifestly unjust. The defendants were justified in using their legal title to the property to compel the corporation to do equity; and it would be contrary to the settled principles of this court to give the complainants relief on any other terms.

The defendant Ehle has no claim to retain the legal title to his share of the premises, and must therefore-forthwith conyey^ the same to the complainants. .The defendants Leiber and Failing must also convey to them the other undivided half of the premises, provided the complainants within six months after this decree to pay to Leiber or his solicitor the said debt and interest thereon from the 5th June, 1819, and his costs of this suit and in the partition suit to be ascertained and taxed by one of the vicé-chancellors or a taxing mastér, and also pay to the defendant Failing or his solicit- or his costs, to be ascertained and taxed in like manner. If the complainants neglect to" pay the said several sums within that time, the undivided half of the property must be sold by a master, and the amount paid out of the proceeds of the sale. And if the proceeds are not sufficient to pay thé whole amount of debt and costs, including the costs of this suit, Liber and Failing are to have execution against any other property of the corporation for the costs of this suit, or for so much thereof as remains unpaid on such sale.