text:
    Hone and others, executors, &c. vs. Van Schaick and others.
    Where the testator devised and bequeathed to his wife the use of his mansion house for life, together with his furniture, books, plate, &c. and an annuity of $3600, in lieu of dower; and then devised and bequeathed all his estate real and personal to his executors in trust for the purposes of his will, and directed them to convert the personal estate into cash and invest the same upon bond and mortgages or stocks, and to sell a part of his real estate, and invest the proceeds thereof in the same manner, and to lease the residue of the real estate so that the interest and income of the whole property might form a general fund; out of which he directed his executors to pay the annuity to the widow; and to divide the residue of that fund, as it should accrue, equally among his seven children and the representatives of his two deceased children, quarterly, for the term of twenty-one years from the date of the will; at the expiration of which time, or as soon thereafter as the executors should deem it discreet to do so, he directed them to divide the real and personal estate among his heirs or then legal representatives; such representatives to take such share only as their immediate ancestor would have been entitled to if living, and the children of the testator to take life estates merely, with remainders in fee to their descendants or those who should then be heirs of the testator; Held, that the devise and bequest in trust to the executors, and the several trust estates and interests depending thereon, and the several remainders limited upon the trust term, were void; but that the specific devise and bequest of the mansion house, furniture, books and plate to the'widow were valid.
    And where the testator by a codicil to such will gave to each of his grand children who should be living at the time of his death a legacy of $6000, to be paid to them respectively upon their attaining the age of twenty-one or marrying, but not to be paid without the approbation in writing of the parents or the surviving parent of the legatee, who were to fix a proper time for tlie payment to the legatee after his or her arival at the age of twenty-one or marriage; and directed that such legacies should be paid out of the testator’s personal property, and that the rest of his real and personal estate should remain subject to the provisions of the original will; Held, that such legacies being independent of the illegal trusts of the original will were valid.
    The limitation of a trust of personal estate, to receive the future income thereof and to apply it to the use of the cestui quo trust for life, or any shorter period, renders the interest of the cestui que trust in such income inalienable ; in analogy to the restriction in the revised statutes upon the power of alienating a similar interest in the rents and profits of real estate so limited in trust.
    Limitations of future or contingent interests in personal property are subject to the same rules which are prescribed by the revised statutes in relation to future estates in lands ; and a bequest of an interest in the income of personal property to accrue and be received after the death of the testator is a limitation of a future interest, within the meaning of the revised statutes on this subject, and in analogy to the provision relative, to the rents and profits of real estate to accrue and be received after the death of the testator.
    A party who is aggrieved by a part of a decree only, cannot by his appeal call in question other parts of the decree in which he has no interest, although the appeal is broad enough to embrace them.
    Whether a legacy to a trustee, payable out of the personal estate of the testator, upon a secret and undefined trust which has been communicated by the testator to the trustee, but not specified in the will or in any other instrument referred to in the will, is valid under the provisions of the revised statutes; quaere ?
    August 21.
    This was an appeal from a decree of the vice chancellor of the. first circuit, upon a bill filed by the executors of John Hone deceased, against his widow and heirs, legatees and distributees, for the purpose of obtaining a construction of the will, and the directions of the court as to the validity of the devise of the estate of the testator to his executors in trust. The testator died in 1832, leaving seven children, and the decendants of two deceased children, his heirs at law; who together with his widow were entitled to his personal estate, if any, not legally disposed of by his will and the codicils to such will. In July, 1831, the decedent made and published his will by which he devised and bequeathed to his wife his mansion house, for life, and also all his furniture, books and plate, and an annuity of $3000 for life, in lieu of dower. He then devised and bequeathed all his estate, real and personal, after payment of his debts, to his executors, or such of them as should assume the trust, for the purposes of the will. And the executors were directed to convert all his personal estate (except his wines and liqtiors, which were to be divided equally among his heirs and widow) into cash, and to invest the same on bonds and mortgages or in stock of the United States, and to lease his real estate in the city of New-York, and to sell that lying out of the city, and invest the proceeds thereof in bonds and mortgages or stocks ; to the end that the rents and profits, interest, and dividends thence accruing might form one'generál fund for the purposes of the will, as thereafter declared. He then directed his executors, out of that fund, to pay to his widow her annuity of $3600, and to Esther Many his niece an annuity of $200 for life; and to divide the residue of the fund arising from such rents, interest, ánd income of his real and personal estate, from time to time as the same should accrue, equally among his seven children and the representatives of his two deceased children ; that is one-ninth to each child or his or her legal representatives, to be paid quarterly. The will also contained limitations over of such rents and profits to the husbands, widows, and descendants of such of the children as should die before the time appointed for the partition of the estate. And at the expiration of twenty-one years from the date of the will, or so soon thereafter as the executors should deem it discreet, they were directed to divide the real and personal estate among the heirs of the testator, or their legal representatives ; such legal representatives to take such share only as their immediate ancestor would have been entitled to if living. Special directions were also given as to the manner of making the partition, and limiting the extent of interest which the distributees should take in the real and personal property, so that the children of the testator should in no case take any thing more than a life estate in the premises ; the ultimate remainder being limited over to their descendants, or the then heirs of the testator. By a codicil made in August, 1831, the testator bequeathed to his wife all his carriages and horses, and increased her annuity to $4000, to be paid quarterly as provided for in the will. He also directed that the annuity to his niece should be $240 ; and he gave to each of his grandchildren who should be living at the time of his death the sum of $6000,- to be paid to them respectively upon their attaining the age of twenty-one, or marrying ; such payments in no case to be made without the approbation of the parents of such grandchildren, or the survivor of such parents, to be expressed in writing to the executors; it being the declared wish of the testator that after the child was of age, or married, the parent or parents should fix a discreet and proper time for the payment of the legacy. These last mentioned legacies were directed to be paid out of the testator’s personal estate and all the residue of the testator’s real and personal estate was to remain subject to the provisions of the original will, as modified by the codicil. By a second codicil made in April, 1832, the annuity to the widow was increased to $5000. And the sum of $30,000 was bequeathed to the testator's wife and his son Isaac, upon certain secret trusts which the testator declared by such codicil that he had disclosed to them, and which they were directed faithfully to perform; which sum was to be paid to them as soon as conveniently might be by the executors.
    Upon the hearing of the cause before the vice chancellor he decided and decreed, 1. That the devise of the real estate to the complainants, two of his sons and two of his sons-in law, as executors, upon the trusts in the will mentioned, was void ; 2. That all the trusts in the will declared, upon such devise to the executors were void ; 3. That the dii’ection in the will of the testator, to the executors, to divide or partition the real estate in the manner therein mentioned, after the expiration of the trust term of twenty-one years, was void ; 4. That every thing in the will which was made to depend upon the execution of that trust so attempted to be vested in the executors, or which was dependant on the powers resulting from it, and every thing growing out of such trust, and all the annuities payable out of the fund therein contemplated to be created out of it, were void; 5. That the annuity of $3600 to the widow, payable out of the trust fund, and the additional annuities payable to her in like manner out of that fund, by virtue of the codicil, were also void ; 6. That the use of the mansion house and the bequests of the furniture, books and plate, and of the carriages and horses to the widow were valid, but as they formed a part of what was devised and bequeathed to her in lieu of her dower in the real estate, she was bound to elect between the same and her right of dower; 7. That the bequest of the wines and liquors was valid, and that by the codicil the widow was entitled to an equal share thereof with the other legatees; 8. That the bequest in the first codicil, of $6000 to each of the grandchildren of the testator who should be living at the time of his decease, and payable out of his personal estate, was valid ; and that the executors should pay the same as directed in the codicil; and 9. That the bequest in the last codicil, of $30,000 to the widow and son of the testator, upon the secret trust and to be applied as therein directed, was valid; and the executors were directed to pay the same according to the codicil. The decree also directed a reference to a master to state and pass the accounts of the executors, with a view to the distribution of the part of the personal estate of the testator not legally disposed of by his will; and that the executors make distribution thereof according to law. And further directions were given for carrying into effect the decision of the court, and for the protection of the executors so far as they lad acted in conformity with the directions of the will, and liso disposing of the question of costs ; with liberty to the parties to apply to the court from time to time for further directions, upon the footing of such decree.
    The complainants, and the defendants Eliza Hone the wife and Elizabeth Hone the daughter of Isaac S. Hone, appealed from so much of the decree as was embraced in the four first clauses thereof. The complainants and Eliza Hone appealed from the fifth clause of the decree, which declared the annuities to the widow to be void. The complainants alone appealed also from the sixth clause of the decree, which declared the devise and bequest of the mansion house, furniture, &c. to the widow to be valid, but required her to elect between the same and her dower in the testator’s real estate. And they also appealed from all parts )f the decree whereby any part or portion of the will or •.odicil were adjudged to be void or inoperative. A similar clause was inserted in the appeal of Eliza Hone, except as to the validity of the several legacies to the grandchildren of the testator, in the first codicil, which she did not admit. Eliza Hone and her daughter Elizabeth also appealed from the part of the decree which directed a reference to pass the accounts of the executors; and the distribution of that part of the personal estate which was not legally disposed of by the will. And the defendants Van Schaick and wife, Clinton and wife, Aspinwall & Hickson, the assignees of I. S, Hone, and Elizabeth Hone, also appealed from the sixth clause of the decree, which declared the legacies, in the first codicil, to the grandchildren of the testator to be valid.
    J. Anthon, for himself and the other complainants.
    The will and codicils are valid, and the executors must be direct- ' ed to execute the same so far as they relate to the annuity to the widow in lieu of dower, and to the annuity to Mrs. Many during her natural life. The will is valid in all its parts, the real estate being therein devised to the executors upon legal and available trusts. The trust to receive the rents and profits of all the real and personal estate and to pay out of the same the widow’s and Mrs. Many’s annuity is valid. The trust to divide the remainder quarter-yearly among the legatees therein named, in equal shares, until partition is made among the heirs at the time fixed by the will, is also valid ; so is the trust to make partition of all the testator’s real arid personal estate among his heirs at the expiration of twenty-one years from the date of the will; such partition in its effects unfettering the property within twenty-one years, by creating persons capable of conveying the fee, viz. by creating the parents the tenants for life, and their children remainder-men in fee, of several and distinct parcels. The rules for making partition, as expressed in the will, are a mere repetition of the rules of representation established by law, and consequently cannot affect the validity of the will. The prudential and contingent clauses of the will do not affect its validity; and the executors must be directed to carry them into effect, viz. the clause directing the disposition of the legacy of a son dying intestate before partition, and giving the same over to his wife and children ; also the clause directing the disposition of the legacy of a daughter dying intestate before partition, and giving the same over to her husband and children ; likewise, the clause directing the investment by executors of the infants’ shares of the personalty under the partition, and making proper devises of the realty. The will is also valid so far forth as the same relates to the children of deceased heirs, viz. John K. Hone, Emily Hone and Maria Hone, children and heirs at law of John Hone, jun. deceased, the rents and profits until partition being bequeathed to the mother for the support of herself and the support and education of said heirs until partition, and then their share to vest in said children as heirs at law. Maria Hone, one of said heirs at law, having died intestate since the decease of the testator, her mother is entitled to her share of the real estate. The legacy under the first codicil having duly vested in Maria Hone before her death, her mother is now, as her heir at law, entitled to receive the same. All the grandchildren born within nine months after the testator’s decease are entitled to their several and respective legacies under the first codicil. If the trust is invalid to its full extent, then as an interest in the estate or its income is given to the legatees as tenants in common in shares, the trust is perfectly valid so as to endure as to each share respectively for the period of two lives in each share, viz. 1. for the life of the first legatees named in their share; 2. for the lives of each of the second set of legatees of each share, in shares as tenants in common, and 3. if invalid to any further extent, then the proportionate shares fall in to the heirs as the first or second set of legatees in each share may happen to fail, by death or by any other termination of the trust as to those shares. But in no case can the trust in that event, as to any share or part of a share, extend beyond the period fixed for a partition. The estate or interest in the income is not given to the legatees as joint tenants, but as tenants in common in shares. The legal representatives of the first set of legatees are precisely in the line of inheritance from the testator and under this construction of the trust the estate only goes to the same persons intended by the testator by descent, at the expiration of the trust in each share, instead of vesting in any of them by purchase as to the testator intended. If the will is invalid in any particular, it may be sustained as to the residue. If the will is entirely invalid, then the widow is entitled to her dower at common law and to her distributive share under the statute, subject to an account for what she lias received, and to the valid dispositions of the personal estate expressed in the codicils. The codicil of 12th August, 1831, is a distinct and independent testamentary paper, not depending on any of the trusts in the will, especially as regards legacies to grandchildren, and as to those legacies it is valid. The codicil of 2d April, 1832, is also a distinct and independent testamentary paper and is valid ; and the executors having carried the same info effect, by paying over to the trustees therein named the trust fund thereby created, are to be protected in such their act.

      W. Kent, for Eliza Hone, the wife of the testator’s son I. S. Hone, and for Elizabeth Hone, one of the grandchildren of the testator.

      J. P. Hall, for the defendants Van Schaick and wife, Clinton and wife, Matthews and wife, Kneeland and wife, Aspinwall & Hickson, the assignees of I. S. Hone, and for J. Van Schaick and twelve other grandchildren of the testator.
    At common law the trustees would take an estate in fee simple in trust in the real and personal estate, in joint tenancy; and at common law the nine children of the testator would take an equitable estate or interest in the premises for a term to continue at least for twenty-one years from the date of the will, as tenants in common in equal shares and proportions. At common law, upon and after the termination of said term, an estate in fee simple would have been limited by the will, to the grandchildren whose parents should then have been dead ; those having arrived at the age of twenty-one years, to take a legal estate respectively in the parts to be allotted to them in severalty—thbse Under age 'to take an equitable estate in severalty "in their respéctive shares (to be allotted to them) until they become of age, when their sitares are respectively to be converted into legal estates. The children of the testator still living, upon the termination of the said term of years, would take at common law an equitable estate in the shares to be allotted them in severalty, which upon their death would go to their respective children in fee. These limitations over, upon the termination of the equitable term of years, are to dubious and uncertain persons, and are to continue so for at least twenty-one years, and as such are inalienable at common law. Under the revised statutes the said limitations of the equitable interests in the rents and profits for twenty-one years are void in their creation, being inalienable uses, which may suspend the power of alienation for a longer period than two lives in being. The limitations over are void under the revised statutes, inasmuch as they are inalienable even at common law for at least twenty-one years, and may suspend the power of alienation of an absolute estate in fee simple, for a longer period than two lives in being; and such suspension does not depend upon the termination of two designated lives. Supposing the equitable interest in the term of years to be subject to a contingent determination thereof, on the death of each of the nine children, as to their respective shares, or supposing that a remainder is limited of the term to the respective children of each child of the testator upon his or her death; such limitations, viz. as well the life interests in the term as the remainders thereof, are void in their creation, because they suspend the power of alienation of all and singular the real and personal estate for a longer period than two lives in being at the creation thereof. The trusts in this will are not such as are authorized under the revised statutes, because the trustees are not to take the active management of the premises, but are to make long demises thereof upon rent; because the rents and profits arc not to be applied to the use of the cestuis que trust under the discretionary management of the trustees, but are to be paid over to them in mass. The trustees and cestuis que trust are not separate and distinct. All the-legacies bequeathed ' in said will and codicils are void.

      J. Barrows, jun. for the defendant Joanna Hone the widow, Mrs. Howland and Mrs. Anthon, two of the daughters, H. Many the niece, and for C. G. Anthon and sixteen other grandchildren of the testator.
   The Chancellor.

Some questions embraced in the pleadings and points of the parties, before the vice chancellor, were not finally disposed of by the decree ; but as there is no appeal on that ground, and the decree reserves the right to the parties to apply for further directions as to any matters not disposed of by the decree, they cannot be taken into consideration at this time. And as none of the parties have appealed from that part of the decree which declares the validity of the legacy of $30,000, to the widow and son of the testator upon an undefined and secret trust, the question cannot now be raised whether such a limitation of personal property in trust is valid, under the provisions of the revised statutes relative to the accumulation of personal property and to expectant estates in such property. (1 R. S. 773, § 1, 2.) It is also proper to remark that some parts of the appeals embrace matters in which the appellants have no interest, either as trustees or otherwise, in having those parts of the decree reversed ; and where parties to the suit who are the only parties aggrieved, if the decree is erroneous in those respects, have not thought proper to complain thereof. Those parts of the decree cannot be reversed upon these appeals, even if I should arrive at the conclusion that the decision of the vice chancellor was wrong in respect to the matters in which these appellants have no interest in reversing the decree. For it is well settled that no person is authorized to appeal from a decree unless he is aggrieved by it. And that a party who is aggrieved by one part of a decree only, cannot by appeal call in question another part of the decree in which he is not interested. (Cuyler v. Moreland, 6 Paige’s Rep. 273. Idley v. Bowen, 11 Wend. Rep. 227.)

As to the most important questions in this cause, which arise upon the appeals of the complainants and of Eliza Hone and her minor daughter, from that part of the decree embraced in the first four clauses thereof, and involving the validity of the trust term and the several trusts depending on the same, as well as of the several remainders limited thereon, I have no doubt that the decision of the vice chancellor must be sustained ; in conformity with the decisions of the court for (he correction of errors in the cases of Coster v. Lorillard, (14 Wendell, 265,) and of Hawley v. James, (16 Id. 61.) In the first of those causes it was decided that in the case of a devise in trust of an entire estate, to receive the rents or income thereof and to distribute it among several cestuis que trusts, it could not be considered as a seperate devise of the share of each cestui que trust, so as to protect the share of each cestui que trust as a tenant in common during his own life; and that as the trust was to endure for a longer period than two lives in being at the death of the testator the whole devise in trust was void. And in the last case it was decided that the absolute power of alienation could not be suspended by means of a trust term, unless the term itself was so limited that it must necessarily terminate during the continuance or at the expiration of not more than two lives in being at the death of the testator. Here there is an absolute limitation of a trust term for twenty-one years in gross, and a disposition of the rents and income of the property during the whole of that period; even if the whole of the testator’s children and grandchildren who were in being at his death shall have died before the expiration of the twenty-one years. And provision is made for the division of the rents and income in that case, for the residue of the term, among their descendants who may not have been in existence at the commencement of the trust term. The whole trust estate and the several remainders limited thereon are therefore void, according to the decision of the court of dernier resort in James’ case; as the remainders depend upon the power to partition the estate after a suspension of the power of alienation for more than two lives in being at the death of the testator. The real estate therefore descended to the heirs at law, upon the testator’s death, and the complainants took the personal estate, in their character of executors, discharged of the special trusts as to the income thereof during the trust term .and afterwards. So much of the .personal estate therefore as was not legally disposed of by the testator in other parts of the will and cocqc¡]S) bek,ngs to the widow and next of kin of the testator; and must be distributed among them by the executors in the same manner as in cases of intestacy.

As the widow and the niece of the testator have not appealed from that part of the decree which declares that the annuities to them,and which are payable out of the fund directed by the testator to be created out of the rents and profits of the real and personal estate, are void, it is probably unnecessary that I should consider the question whether such annuities can be charged upon the personal estate .not otherwise legally disposed of by the will. I think however they must fail on the ground that they were not intended by the testator to be charged upon his estate generally, but only upon the particular fund which has failed by reason of the illegality of the direction for its creation. So far as respects the annuity to the widow in lieu of her dower, it cannot be charged upon the personal estate generally, for another reason. As her annuity was payable out of the income of the estate and not out of the principal thereof, it would be wholly inconsistent with the intention of the testator to give to her the one third of such principal of the personal estate, as property not legally disposed of, and at the same time to give her the annuity which by the will was payable out of the income of the same property as a part of the trust fund. This disposes of the appeals from the decision of the vice chancellor contained ¡ in the fifth clause of the decree, even if the present appellants were the proper parties to appeal therefrom and had an interest in the reversal of that part of the decree.

I can see no possible objection to the sixth clause of the decree, which declares the devise of the mansion house, and the bequest of the furniture, books, plate, and carriages and horses to the widow-to be valid; subject to her right of election to recieve them in lieu of her dower in the real estate. These specific devises and bequests are in no way connected with the illegal trusts and limitations, in .the will. And although the testator had also given to her the annuity which is declared to be illegal, as a part of the consideration for the relinquishment of her dower, she still has the right, if she thinks proper to do so, to accept of a part of what was intended for her by the testator as an equivalent, and to relinquish her dower for that consideration only. Even if she had precluded herself from claiming her dower by receiving the annuity given to her by the will in lieu thereof, and by neglecting to commence proceedings for the recovery thereof within a year from the death of her husband, she ought not in equity to be bound by that election, except as against bona fide purchasers or mortgagees, when the principal part of the consideration for the relinquishment of her claim has been taken from her by the decree of this court declaring the annuities to be invalid.

The provision in the decree for a reference to a master to take and pass the accounts of the executors, with a view to the distribution of the personal estate of the testator, not legally disposed of by his will, among the next of kin of the decedent, was but a necessary consequence of the decision that the trusts of the will and the interests limited upon the trust term were invalid ; as by the provisions of the revised statutes in relation to the limitations of interests in personal estate, the absolute ownership thereof cannot be suspended by any limitation or condition whatever for a longer period than the power of alienation of real estate can be suspended. And in all other respects limitations of future or contingent interests in personal estate are subject to the same rules which are prescribed by the revised statutes in relation to future estates in lands. (1 R. S. 761, tit. 4.) Dispositions of the rents and profits of land to accrue and be received subsequent to the execution of the instrument creating such dispositions thereof are considered as future estates and interests, and are subject to the rules established by the revised statutes in relation to other future estates in lands. (1 R. S. 726, § 36.) And in analogy to this provision relative to the rents and profits of lands, a bequest of the interest or income of personal estate, to accrue and be received after the death of the testator, is a limitation of a similar interest in personal estate and must be subject to the same rules. The limitation of a trust of personal estate, to receive the future interest or income thereof and to apply jt t]¡c use 0f the cestui que trust for life or any shorter period, as authorized by the fifty-fifth section of the article of the revised statutes relative to uses and trusts, renders the interest of the cestui que trust in such income inalienable, according to the provisions of the sixty-third section of the same article. Such a limitation therefore suspends the absolute ownership of the trust fund; as the trustee cannot dispose of the fund absolutely, even with the assent of the cestui que trust, without being guilty of a breach of trust. And if the trust to receive and apply the interest or income is so limited as to suspend the absolute ownership for more s than two lives in being at the death of the testator, such limitation is void. In the present case, as the limitations in trust of the real and personal estate were the same, as well as the power in trust to partition and divide the same after the expiration of the twenty-one years, it followed, as. a necessary consequence, that if the limitations were void as to the real estate they were equally void as to similar interests which the testator had attempted to create in relation to this part of his personal property.

Being satisfied that there is no valid objection to this part of the decree, it only remains for me to consider the question whether the vice chancellor was right in that part of the decree which is appealed from by Van Schaick and others. The several legacies of $6000 each, to the grandchildren of the testator, are not payable out of the interest or income of the property, but are directed to be paid out of the personal property generally. They are no part of the trust fund devised and bequeathed to the executors upon the special trust mentioned in the will. They are therefore to be raised out of the personal estate in the hands of the complainants in the character of personal representatives of the testator merely', and not by virtue of any special trust. And the amount of each legacy, if valid, must be raised out of personal estate, and be securely invested for the legatee until it becomes payable according to the terms of the will; and the interest or income of the fund in the meantime belongs to the widow and next of kin of the testator, as property not disposed of by the will. But as the interest of each legatee in his or her $6000 legacy was limited to commence in possession at a future day, the bequest of the legacy was a limitation of a future estate or interest in personal property, according to the statutory definition of a future estate. (1 R. S. 723, § 10.) The validity or invalidity of each of these legacies payable at a future day, must therefore depend upon the rules of the revised statutes which are applicable to the devise of a similar future interest or estate in land. Each legacy being carved out of the personal estate at the death of the testator, or within the year allowed by law and the practice of the courts for the settlement and distribution of the testator’s personal property, is in the nature of the limitation of a future estate in fee in lands after the expiration of a term of years, and without the intervention of a precedent estate by the will: the present interest in the land, or the right to receive the rents and profits during the term, descending in the mean time to the heirs at law of the testator as an interest in the land not legally disposed of by his will. The limitation of such a future estate in land, whether the same is vested or contingent, is authorized by the revised statutes, if limited to a person in being at the death of the testator; provided it is so limited that it must vest in interest, if ever, during the continuance of not more than two lives in being at the death of the testator. Here the limitation is, in terms, to grandchildren in being at the death of the testator. And if the legacies are not vested in interest at that time, but remain contingent until the parents or the surviving parent of the respective legatees has given the written direction for the payment thereof, the legacy must still vest in interest before the termination of the lives of the two parents, who were in being at the death of the testator. The legacy therefore must be vested in interest in the legatee, if ever, at or before the termination of the lives of both of his parents.

The conclusion then at which I have arrived in this case is, that the decree of the vice chancellor is not erroneous in any of the provisions thereof which are called in question by these appeals. It must therefore be affirmed. And the costs of all the parties upon the appeals must be paid out of that part of the testator’s personal estate which is not legally disposed of by the will. As some of the parties are understood to have died since the perfecting of the appeals, the decree of affirmance must be entered nunc pro tunc as of the 5th June, 1837; and the proceedings are to be remitted to the vice chancellor.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    In the matter of Morgan, a lunatic.
    It is not every case of mental weakness or imbecility which will authorize the court of chancery to exercise the power of appointing a committee of the person and estate; but to justify the exercise of such a power, the mind of the individual must be so far impaired as to be reduced to a state which, as an original incapacity, would have constituted a case of idiocy.
    It is not suffieienl, upon a commission of lunacy, for the jury to find that the individual proceeded against is incapable of managing his affairs, or governing himself, in consequence of mental imbecility and weakness. To authorize the court to appoint a committee, upon the presumption that his mind is so far impaired as to reduce it to the standard of idiocy, the jury must find distinctly that he is of unsound mind, and mentally incapable of governing himself or of managing his affairs.
    August 21.
    A commission in the nature of a writ de lunático inquirendo was issued in this case, to inquire whether S. Morgan, who was alleged to be of unsound mind, was a lunatic or idiot, or of unsound mind, and mentally incapable of governing himself and managing his affairs, Sic. The jury by their inquisition found that he was incapable of managing his affairs or governing himself, in consequence of mental imbecility and weakness, and had been so incapable for two or three years. The jury also found that being so incapable he had, in March, 1838, sold and assigned certain real and personal estate to which he was entitled as the heir and next of kin to a deceased son, of the value of about $2000, for the inadequate price or compensation of $25. And upon this inquisition an application was made for the appointment of a committee of his person and estate.

      J. A. Guernsey, for the petitioners.
   The Chancellor.

It is probable from the facts stated iu the inquisition in this case, that the individual against whom these proceedings are instituted is a proper subject for a commission, and for the protection of the summary power of this court. It was formerly doubted whether the court could proceed upon a commission which did not find the party to be either a lunatic or an idiot. But at a more recent period, in England it was held that the court had jurisdiction in cases where- the mind had become unsound from old age or infirmity, or any other cause of a permanent nature. And this class of decisions was followed by Chancellor Kent in the case of Barker, (2 John. Ch. Rep. 232;) which principle was subsequently adopted by the legislature in the last revision of the laws. (2 R. S. 52, § I.) It is not every case of mental weakness or imbecility, however, which will authorize this court to exercise the important power of depriving a man of his liberty and of the possession of his property. The constitution has wisely provided that he shall not be deprived of either except by due course of law. And many cases may arise in which the mind and memory are so far impaired as to afford grounds for setting aside an improvident agreement made by a person in that situation, upon a bill filed for that purpose, when this court would not have the power to deprive him of the right to the possession and control of his property on the supposition that he was a person of unsound mind. To constitute a case of unsoundness of mind, which will justify the court in taking the person and property of a freeman into its possession and committing them to the custody of another, his mind must be so far impaired that if it had never been elevated above that state of capacity from his birth it would have constituted a case of idiocy. But "mental imbecility may exist in various degrees between absolute idiocy and the ordinary state of mental capacity as it exists among mankind in general. To authorize the court, therefore, to act on an inquisition, upon presumption that the mind had become so far impaired as to resemble a state of idiocy, the jury should in terms find, as in the case of Barker before referred to, that he is of unsound mind, and mentally incapable of governing himself or of managing his affairs. If the jury upon their oaths are not able to go thus far, he ought not to be deprived either of his liberty or the control of his property ; neither should he, or those whose contracts with him are overreached by the inquisition, be subjected to the trouble and expense of a traverse.

The finding in the present case does not differ materially from that in Ex parte Cranmer, (12 Ves. 445,) where it was held that the finding was insufficient. And the case of Holmes, (4 Russ. Rep. 182,) shows with what strictness the English court of chancery confines the jury to the technical expression of unsoundness of mind alone, in their finding in such cases. For there, although the jury actually found that the party proceeded against was of unsound mind, yet as that finding only appeared to be drawn by the jury as a conclusion of law, from the fact that his memory was from old age and paralysis so much impaired as to render him incompetent to the management of his affairs, Lord Lyndhurst set aside the inquisition, and directed that a new commission should issue. And I agree with him that it is unsafe in such cases to permit a departure from the technical form of finding, that the party is of unsound mind, and mentally incapable of governing himself or of managing his affairs. By that finding of the jury the incapacity is foundas the result of the unsoundness of the mind, which is a. correct legal conclusion; \\ hereas, in the other mode of finding, the idiocy or unsoundness of mind of the party is not the necessary legal result of mere imbecility of intellect.

The inquisition in this case must therefore be set aside, and a new commission must be issued in the usual form.


text:
    McNamara and wife vs. Dwyer and others.
    The court of chancery has jurisdiction to compel a foreign executor or administrator to account for the trust funds which ho received abroad and brought with him into this state; and that too without taking out letters of adminsitration on the estate of the decedent here. And upon a bill filed againt such foreign executor or administrator, if he is about to depart and go beyond the bounds of the state, he may be arrested upon a ne exeat and held to equitable bail, as in other cases.
    In a suit here against a foreign executor or administrator, for assets received in the country where he was appointed, and brought into this state, the nature and extent of his liability will depend upon the laws of the state or country where he derived his authority to administar the assets of the de. cedent. And the assets must be applied in the payment of debts, or be distributed among the next of kin, according to the law of that country, and which would be applicable to the ease if he had been called to account there.
    A foreign executor or administrator cannot maintain a suit in this state by virtue of letters testamentary or of administration granted abroad.
    It is a matter of course to order a nc exeat to be discharged, upon the defendant’s giving security to answer the complainant’s bill, and to render himself amenable to the process of the court pending the litigation, and to such process as may be issued to compel a performance of the final decree.
    This was an application on the part of the defendant J. Dwyer to discharge a ne exeat, on which he had been arrested and held to bail in the sum of $15,000; or to reduce the amount of bail required, and to permit the petitioner to leave the state, upon his giving the usual security to answer the complainant’s bill and to render himself amenable to the process of the court during the progress of the suit, and to such process as might be issued to compel a performance of the final decree therein. The petitioner resided at New-Orleans, and the complainants in this state; and the former was on his way to Ireland when he was arrested, on the ne exeat, at New-York. The bill was filed against him for an account and distribution of the estate of P. McKeogh, who died in Ireland leaving a large real and personal estate there, and of whom Honoria, the wife of the complainant P. McNamara, together with the several defendants in this cause, were the next of kin. The bill alleged, among other things, that in 1836 the defendant J. Dwyer was appointed administrator of the estate in Ireland, and possessed himself of the personal estate of the decedent to a large amount; that he converted into money and brought to this state, in January, 1837, about $35,000 thereof, which he had subsequently misapplied by using the same in mercantile speculations, and in the purchase of real estate in New-Orleans and elsewhere ; and that the complainants’ share of the personal estate of the decedent exceeded the sum of $10,000. The petitioner alleged that a bill in chancery had been filed against him in Ireland, by a person claiming under an alleged will of the decedent, and that other claims were made against the estate there; that the whole sum to which the complainants would in any event be entitled, beyond what they had already received, would not exseed $4000; and that he had given security in the sum of $100,000 upon obtaining letters of administration upon the estate in Ireland. The petitioner did not state, however, that he believed that the pretended will ever would be substantiated, or that any such will was in existence ; but on the contrary it appeared from his letter to the complainants, a copy of which was annexed to the bill, that he believed the pretended will could never be substantiated. Neither did the petitioner deny the allegation, contained in the complainants’ bill, that the suit in the court of chancery of Ireland related solely to the real estate of the decedent in that country, the exclusive right to which was claimed by the defendant John Dwyer, as heir at law.

      August 21.

      William Mulock, for the petitioner.

      C. O'Connor & A. L. Robinson, for the complainants.
   The Chancellor.

There can be no reasonable doubt as to the right of the complainants to require of the petitioner equitable bail in this case, if this court has jurisdiction to call a foreign administrator to account, at the suit of the next of kin, for the personal assets of the decedent received abroad and brought into this state. The converting of the fund into real estate, instead of paying it over to the distributees or vesting it upon proper securities, was a breach of trust as to the complainants, who had not consented to this disposition of the fund. And the revised statutes have authorized executors and administrators to be holden to bail in actions brought to charge them with waste, upon affidavit of the fact that such waste or misapplication of the funds of the estate has been committed. (2 R. S. 448, § 34.) Even if the petitioner was a resident, he would not be exempted from arrest, upon due proof of a misapplication of the fund in his hands as administrator and that he was about to leave the state; as the act to abolish imprisonment for debt does not apply to arrest upon mesne process out of this court, in cases of exclusively equitable cognizance. (Brown v. Haff, 5 Paige's Rep. 235.) Besides, it is distinctly alleged in the bill that the defendant John Dwyer had not been a resident of this state for one month previous to the commencement of this suit.

It appears to be perfectly well settled that a foreign executor or administrator cannot maintain a suit in this state by virtue of letters testamentary or of administration granted abroad. And the learned and very distinguished American commentator on the conflict of foreign and domestic laws is, evidently, of the opinion that this principle extends to suits brought against the foreign executor or administrator, to recover the property which he has received in that character. (Story's Confl. of Laws, 422, § 513, 514.) I have, however, after a careful examination of the several cases referred to by him, not been able to find any one in which it has been directly decided that the remedy against an executor or administrator, either in behalf of the next of kin or of the creditors, is necessarily confined to the courts of the country in which the letters testamentary or of administration were granted. Indeed to suppose such was the law, would lead to the conclusion that cases must frequently exist in which there would be a total failure of justice. It is well known, as a general rule, that executors are not required to give security upon the granting of letters testamentary to them; so that if they remove to another state, or country, taking the proceeds of the testator’s property with them, there would be no possibility of compelling them to account for the same by a resort to the tribunals of the state or country where probate of the will was originally made. And even in the case of an administrator who had given security to account, the remedy there might be unavailing, in consequence of the insolvency of his sureties. I admit that in the enforcement of the remedy, against the personal representative of the decedent, in the tribunals of another government, respect must be had to the nature and extent of his liability according to the laws of the state or country from which he derived his authority to administer the assets of the decedent; so far at least as respects that part of such assets as were within the jurisdiction of the state or country from which he derived such authority. Those assets must be distributed among the next of kin, or applied to the payment of debts, in the same manner as though the remedy was sought by the creditors, or distributees, at the place of his original appointment, although he may have removed with the assets to another country. Certainly, if a guardian appointed in one of our sister states should come into this state with the property of his ward, or after he had squandered the same or appropriated it to his own use in the state where he recieved his appointment, there could be no reasonable doubt as to the jurisdiction of this court, to compel him to account for and pay over to his ward what was justly due according to the laws of the state in which he assumed the trust. And I confess I can see no reasons for giving such a remedy here, in the case supposed, which would not be equally applicable to the case of an executor or administrator, coming into this state and bringing with him the property which had been confided to him as trustee for the creditors or next of kin of the decedent. In the case of Logan v. Fairlie, (2 Sim. & Stu. Rep. 248,) where an executor appointed in India, and who had proved the will there, remitted the proceeds of the estate to his agents in England to be paid over to the residuary legatees who happened to reside there, Sir John Leach supposed it was necessary for the legatees to procure the appointment of an administrator in England, to enable them to recover the fund. No case, however, is referred to in support of that opinion, which was only expressed incidentally, as a decree had already been made on the bill of the legatees. And it appears also to be opposed to the decision of the court of appeals in Virginia, in the case of Wernock v. McMurdo, (5 Rand. Rep. 51;) where it was held' that the creditors, legatees, or distributees of the decedent, and not the administrator de bonis non, were the proper persons to sue for the proceeds of the estate which had been wasted or misapplied by the former executor or administrator. The case of Campbell v. Tousey, (7 Cowen's Rep. 64,) only decides that a foreign executor or administrator cannot be sued as such, by a creditor of the decedent, in a court of law in this state. But even that case shows that the creditors and legatees are not without remedy, in a case where the foreign representative has brought the assets into this state ; though I confess I have some doubt whether he ought to be called to account therefor, in a court of law, as an executor de son tort. But I can see no valid objection to a suit against him in this court, where he may have the full benefit of his administration of the estate abroad; and where full and ample justice can be administered without regard to the technical form of the suit. I have, therefore, no doubt but that this court has jurisdiction, to compel the defendant J. Dwyer to account for and to pay over to the complainants their distributive share, of the estate of the decedent which had been received by him in his character of administrator in Ireland, and which was brought into this state on his return from that country in January, 1837; and that too without taking out letters of administration here. On such accounting, however, the defendant will be entitled to all such allowances as, by the laws of Ireland, he would be entitled to in a suit brought against him for an account and settlement of his trust in the courts of that country.

The claims made against the estate in Ireland form no valid objection to this suit; for if those claims are well founded, the administrator should pay them, as soon as he Is satisfied of that fact, and should pay over the balance in his hands to the distributees. And if the validity of such claims cannot be ascertained in time to provide for the payment thereof in the final decree in this suit, the complainants will not be allowed to receive their distributive share of the estate until they give satisfactory security to the court to refund, in case any claims are thereafter established against the administrator, which the assets hereafter to be received in Ireland are insufficient to meet. This ne exeat was properly allowed, upon the facts stated in the complainants’ bill. The petition to discharge the ne exeat must therefore be denied.

But under the general prayer of the petition for further relief, the amount for which the petitioner has been held to bail may be reduced; and he may have the ne exeat discharged, as a matter of course, upon his giving the usual security, to answer the complainants’ bill and to render himself amenable to the process of the court pending the litigation, and to such as may be issued to compel a performance of the final decree. It only remains for me to inquire whether the amount of the security required upon the ne exeat is too high;" and to prescribe the terms upon which the writ is to be discharged. The amount of the complainants’ claim, as sworn to, is undoubtedly founded upon the supposition that the defendant will hereafter be able to collect the debts still due in Ireland, and that the claims against the personal estate of the decedent will not be substantiated. But the defendant’s letter, which is principally relied upon to show the amount of the estate, shows that but little can be expected from that source; though from the petition it would appear that the administrator expects to recover enough to pay the complainants’ distributive share, which he estimates at not more than 14000 beyond what they have already received. Presuming for the present, therefore, that the claim of Mrs. Eyre against the estate will be established, it will exhaust the probable amount of assets hereafter to be received in Ireland; leaving the administrator to account only for the funds and plate mentioned in his letter of July, 1837. Those funds, upon the supposition that there was no stock in the Bank of Ireland, and excluding the bonds not collected, do not much exceed $45,000. After making a liberal allowance for the commissions of the administrator and the expenses of administration, beyond what he has probably received for the difference in exchange, the complainants’ share of this fund will not probably exceed $6,500 in additon to what they have already received. The amount in which the defendant is held to bail upon the ne exeat should therefore be reduced to $9000; as that will be sufficient to cover -what will probably be found due to the complainants, with interest and costs. And the ne exeat is to be discharged absolutely, upon the'petitioner’s filing with the assistant register a bond, in the usual form, with two sufficient sureties, in the sum of $9000, to be approved of by the vice chancellor or the injunction master of the first circuit; or upon his depositing with the assistant register the sum of $7000, to be invested in the trust company, on interest, to abide the further order of the court.


text:
    Barclay and others vs. Brown.
    If a party to a suit before a vice chancellor is misled by any neglect or mistake of the clerk as to the time of the entry of a final decree, whereby he does not perfect his appeal until after the expiration of the time for appealing, it would be sufficient ground for an application to the vice chancellor, to have the decree re-entered, so as to give him an opportunity of appealing within the time allowed by law.
    The court has no power to extend the time for appealing from a final or interlocutory decree, upon the ground of a mere mistake of the party himself, in not entering his appeal within the time prescribed by law.
    The caption of a decree or order, unless otherwise directed by the court, should correspond with the time of the actual entry of such decree or order. And where a decree is entered nunc pro tunc as of a previous date, or otherwise, it should appear by some entry in the minutes of decrees, or in the minutes of the proceedings in the cause, or in both, at what time the decree or order was actually entered.
    This was an application to dismiss an appeal from the final decree of a vice chancellor, on the ground that it was not entered within the six months after the actual, entry of the decree in the minutes of the court. The cause was heard in July, 1837, but the decree was not settled and actually entered until the 26th of October thereafter; and then, by a mistake of the deputy clerk, the caption of the decree was of the day when the cause was heard before the vice chancellor, instead of the day when it was in fact entered. By a similar mistake the decree, as settled, was marked as filed on the same day mentioned in the caption thereof. . The defendant’s solicitor having received a certified copy of the decree from the clerk, sent a copy of the same to the solicitor of the adverse party, on the 7th of November, 1337, with a notice endorsed thereon that it was a copy of the decree entered in the cause. This notice was dated on the 7th of November; but the solicitor to whom it was sent mistook the date of the notice for the time when the decree was actually entered, and therefore did not perfect his appeal until the 5th of May, 1838, nine days after the time for appealing, as allowed by law, had expired. The respondent’s solicitor, within the time allowed by the rule for that purpose, and before he was aware that the appeal was entered after the time for appealing had expired, gave notice of his election to furnish the papers for the court upon the hearing of such appeal.

      August 27.

      A. C. Paige, for the motion.

      J. Ellsworth, for the appellants.
   The Chancellor.

The appellant’s solicitor was not misled or prejudiced in this case by the mistake in the caption of the decree, as he knew it was ante-dated as of the time of the hearing before the vice chancellor. Neither was he prejudiced by any thing which occurred in the clerk’s office; as he did not examine the books for the purpose of ascertaining when the decree was actually entered. If he had done so, and had been misled by any neglect or mistake of the clerk, it might be a sufficient ground for an application to the vice chancellor to have the decree re-entered, with a corrected caption; so as to give his clients an opportunity to appeal from the decree within the time allowed by law after such re-entry thereof.

The caption of a decree or order, unless otherwise directed by the court, should be made to correspond with the time of the actual entry of the decree. And if the solicitor, in drawing it up, has inserted a different time in the caption of the decree or order, without authority of the court, the register or clerk to whom it is presented to be entered, should require him to alter it so as to correspond with the time of such entry. In all cases, whether the decree is entered as of a previous time, nunc pro tunc, or otherwise, it should appear, either by an entry in the minutes of decrees or in the minutes of the proceedings in the cause, or in both, when the decree or order was actually entered.

Although the complainants’ solicitor was not prejudiced by any mistake of the clerk in the present case, I am satisfied the neglect to appeal within the time allowed by law arose from the circumstance of the date of the notice, on the back of the copy of the decree, being mistaken for the true time of the actual entry of the decree. I should therefore consider it my duty to relieve against such a mistake, if this court had the power to do so without exceeding the limits of its jurisdiction upon appeals. The time for appealing, however, being limited by law, and no authority being given to the chancellor to extend the time in any case, upon a mere mistake of the party in not entering his appeal within the time prescribed by the legislature, no relief can be given in this case. The respondent’s notice of his election to furnish the papers on the hearing, was not a waiver of the right to have the appeal dismissed ; even if it was competent for the parties to give jurisdiction to the court, by any agreement between themselves, to hear an appeal not made in time.

The appeal must therefore be dismissed; but under the circumstances of this case it must be without costs as against the appellants.


text:
    Cox vs. Wheeler.
    Where a mortgagee whose mortgage is payablehy instalments, sells the premv ises under a statute foreclosure to pay the amount which has become due, subject to the future instalments, the mortgaged premises in the hands of the purchaser are, in equity, the primary fund for the payment of such future instalments; and the mortgagor in such a case is entitled to the surplus monies, arising from the statute foreclosure, beyond the instalment which has become due and the costs of sale.
    If the mortgagee himself become the purchaser, in such a case, the whole equity of redemption becomes merged in his legel estate in the premises; and his claim upon the mortgagee for the payment of the future instalments is extinguished, so that he cannot offset such instalments in a suit brought against him for the surplus monies arising upon the sale.
    Where a third person becomes the purchaser, subject to such future instalments, and the mortgagor is afterwards obliged to pay the same by a suit at law upon his bond, he is in equity entitled to be subrogated to the rights of the mortgagee; so as to obtain remuneration by means of the lien of the mortgagee upon the land as the primary fund for the payment of such instalments.
    When a mortgage is payable by instalments, the mortgagee has a right to sell the premises discharged of the lien of future instalments, and to retain the whole amount of his mortgage and costs out of the proceeds of the sale.
    Sept. 18.
    This was an appeal from a decree of the late vice chancellor of the fifth circuit, dismissing the complainant’s bill with costs. In September, 1830, the complainant held a bond and mortgage against the defendant, payable by instalments ; on which was then due $558,33, and the further sum of $300 and interest was to become due and payable on the 27th of August, 1831. The complainant advertised the premises for sale, on a statute foreclosure, and on the 17th of March, 1831, the premises were sold at public vendue, subject to the future instalment, and were bid in by the complainant at $800. After the sale the defendant brought a suit in the court of common pleas to recover the surplus, bid upon the sale, beyond the amount of the payments which had become due and the costs of foreclosure. After the last instalment became due the complainant filed his bill in this cause, alleging that the mortgaged premises were not worth more than the $800; that the defendant was in embarrassed circumstances, and praying that the amount of the last instalment might be offset against the surplus for which the suit in the common pleas was brought. The allegations in the bill were admitted by the answer, except the allegation that the mortgaged premises were not worth more than the $800 bid for the same upon the statute foreclosure. On the contrary, the defendant alleged that the premises were worth $1500. A replication was filed to the answer, but no testimony was taken by either party.
    The following opinion was delivered by the vice chancellor :
    Denio, V. C. The main question in this case is, whether the instalment of $300, which fell due since the sale, was not extinguished as a personal charge against the defendant by the sale and purchase by the complainant. In the case of Bellenger and others v. Shoemaker and others, decided by me on the 3d of February last, this precise question was presented for adjudication. And upon a full consideration of the statute and the authorities cited upon the argument of that cause, I determined that the future instalment was in equity discharged as against the mortgagor, and that it became a specific charge upon the land in the hands of the purchaser, who was a stranger, and his grantees; and I directed it to be satisfied out of the premises in the hands of the defendant, to whom it had passed by mesne conveyance from the purchaser with constructive notice of the transaction. Referring to the opinion delivered upon that occasion, which has, I believe, been acquiesced in, I will add such other remarks as have occurred to me.
    Upon the non-payment of an instalment due upon a mortgage containing a power of sale, the mortgage strictly becomes forfeited, and the mortgagor may foreclose the defendant’s equity and subject the premises to a sale in this court, or may procure a sale by advertisement under the statute. If he pursues the latter course, the premises are sold to satisfy the money which is secured by the mortgage; and if there is any surplus beyond the instalments which have become payable, the mortgagee retains it to pay the remainder of the mortgage debt; and it is only the surplus after the whole debt is paid, which is to be rendered to the mortgagor or his representatives. See 2 R. S. 545, § 2, sub. 2, to show that any default in the condition of a mortgage is sufficient to authorise this proceeding, where the power of sale, as in this case, declares that the sale may take place for any default; and Id. p. 246, § 6, shewing that it is only in a case where the mortgaged premises consist of “ distinct farms, tracts or lots,” that no more than the amount due and payable at the first publication of the notice is to be raised by the sale. In all other cases, the whole premises must necessarily be sold, and the whole debt, whether then payable or to become payable thereafter, must be paid to the holder of the mortgage. The statute does not contemplate any such proceeding as that adopted by the complainant, of selling subject to future instalments; and in an ordinary case, upon the usual notice, the purchaser would acquire by the sale all the title which the mortgagor had at the time of the execution of the mortgage, discharged from the incumbrance of the mortgage ; or in other words, the purchaser would acquire the whole estate and interest of the mortgagor and of the mortgagee. (Lansing v. Goelet, 9 Cowen, 358. 2 R. S. 546. § 8.) And in such a case as the present, if a stranger had become the purchaser, the mortgage as a mortgage would be spent, and would no longer be a lien upon the premises for a future or any other instalment; (9 John. Rep. 258;) yet an equitable lien would be created in favor of the mortgagee against the purchaser, for the future instalment which he would be deemed to have assumed. The effect of foreclosing a mortgage before the whole debt has become due, must frequently be to subject the debtor to have his property applied to the payment of a debt which is not wholly due ; and this is equally so where the foreclosure takes place in this court, except that in the latter case there may be a sale in parcels, where it can be done without injury to the interest of the parties. But the premises may not consist of distinct tracts, farms or lots; and then by a chancery foreclosure, in a particular class of cases, only sufficient to pay the amount due will be sold; when, if the foreclosure had been by advertising the whole would have been sold. There can be no doubt that it is in the power of the mortgagee to allow to the purchaser a credit or postponed period of payment upon those sales, as to the whole of the money which he is entitled to retain, or any portion of it; and where he chooses to do so, he may determine for himself what security he will exact for the eventual payment of the money. And I see no objection to the insertion of a notice, in the advertisement of sale, of the mortgagee’s determination to give such credit, and of the security which he will require. The rights of the mortgagor would not be impaired, but would be generally promoted by such a previous notice of the dispensation, on the part of the mortgagee, with the more rigorous terms of ready payment, which he would have a right to require. In this case it would have been entirely correct for the complainant to have advertised that, on the sale of the mortgaged premises, he would not exact the payment down of an amount of three hundred dollars of the money for which the premises might be sold, but would give a credit in respect to that sum until the time when the instalment of that amount would become payable, by the terms of the bond and mortgage; requiring, however, as his security, a lien upon the mortgaged premises in the hands of the purchaser. This would not have differed in effect from the complainant’s proposition, in the advertisement in this case, to sell subject to future instalments ; except that the form actually pursued by the complainant supposes the law to make a provision in respect to the future instalments, which should properly have been the subject of an agreement between the mortgagee and the purchaser by the insertion of the special terms of sale above suggested in the advertisement, and stating the same on the .occasion of the sale, and the acceptance thereof by the purchaser. By the auction sale of these premises which was actually proposed by the advertisement, the bidders were to declare what sum they were to pay down for the mortgaged premises, and to take them charged with the remaining instalments and interest, to be paid by the purchaser at the period fixed for their payment in the mortgage; and this must be presumed to have been so understood by the bidders. By bidding f800, the complainant declared his assent to take the premises for an aggregate amount equal to the instalment added to the S800. Upon any other supposition, the condition of the sale that the premises would be subject to future instalments would be idle and senseless. It is presumed that a person attending for, the purpose of becoming a purchaser, would make himself acquainted with the amount and the time of payment of the future instalments, and would bid such amount as added to the amount of the instalment he deemed the premises woi’th. And if these premises had been sold to a stranger, under the same terms of sale upon which they were sold to the complainant, I should have held the purchaser liable, and the land bound for the remaining instalment, not by the force of the original mortgage, but of the contract resulting from the circumstances of the transaction. I should also have decreed the mortgagor to have been discharged, and the bond and mortgage satisfied, and that the surplus belonged to the mortgagor. The complainant ought not to be in a better condition than a stranger who should have purchased. He consequently must give up the remaining instalment, and must pay over the surplus which remains of the amount bid, after paying thereout the amount which had become payable, with interest and costs.
    It is true, as argued by the complainant’s counsel, that a mortgage before foreclosure is merely a security for a debt; that the debt is the principal subject, and the mortgage is a collateral pledge of the land for the debt. But this does not continue to be the case after foreclosure. There the land becomes the absolute property of the purchaser, and the debt is extinguished in whole or in part; and that portion which remains unsatisfied remains the debt of him who originally owed it, unsecured by the pledge which is exhausted. Suppose, in this case, the land had in truth been worth precisely the amount of the mortgage debt due and to become due, and it had been sold in the manner in which this was sold, and the complainant had bid precisely the amount due, no one would of course bid more, for that sum, with the remaining instalment which it would have been sold subject to, would have been its whole value. Ought the defendant to pay the remaining instalment 1 Upon the principles contended for by the complainant’s counsel he must have done so ; and yet nothing can be clearer than that such a proceeding would subject him to the payment of the instalment twice—once in an equivalent amount in value of the mortgaged premises, and again in a suit to be brought by the complainant.
    One argument of the complainant’s counsel is, that the advertisement and declaration, that the premises were to be sold and the actual sale thereof subject to future instalments, not being authorized by the statute, were merely nugatory, and did not affect the rights of the parties; and that the matter is to be received as though the sale had been in the ordinary form, unattended by that circumstance. There cannot, as it seems to me, be any doubt but that these peculiar conditions of the sale diminished, to the amount of this last instalment, the amount for which the premises were sold. But a perfect answer to the position is found in the consideration, that if it is correct there is no occasion whatever for the interference of this court, for in that case the surplus moneys belonged to the complainant. I know it was said, in answer to this suggestion, that the defendant could not object to there being a remedy at law, inasmuch as it was not objected to in the answer. But the relief here sought is a set-off of the last instalment against the surplus moneys; and if there be no surplus moneys, there is nothing to set off against the instalments. The amount of the bid eo instanti applied itself to extinguish so much of the mortgage debt, and if the defendant has commenced an unfounded suit in Onondaga common pleas, I ought to presume that that court will hold in accordance with the law as it is.
    The complainant’s counsel illustrated his views of this case by the supposition that a person has two bonds and mortgages, of different dates, upon the same premises against the same person, and that he sells on the younger one and becomes the purchaser, at less than the value of the land, and asks whether the debt secured by the older mortgage would not be good against the person. In the case supposed, the senior mortgage is in truth a lien and unaffected by the sale, whether any notice is given at the time of sale or in the advertisement, or not, unless indeed it is fraudulently concealed. Here, the condition is one which does not legally appertain to the transaction, but is introduced by the party and assented to by the purchaser; it becomes by convention a part of the contract, which essentially varies the case. Besides, in the case supposed, if it be admitted that the premises are really worth the amount of the prior incumbrance in addition to the amount bid, and the subject should be so situated that the creditors should be obliged to come into this court to collect the older debt, I am not satisfied that he would be entitled to relief. The case of two judgments and a sale under the junior one, has still less analogy ; for judgments are only a general as distinguished from a specific lien upon land, and one might well give a full price for land sold under a junior execution if the judgment debtors were able to pay the older one. It may be that the complainant would have been entitled to relief in this cause, on the ground of misapprehension of his right, upon a bill setting forth a case of that character. But upon the facts appearing in these pleadings, I think he has no equity whatever ; and I therefore order the bill to be 'dismissed with costs.
    P. Gridley, for the appellant.
    The last instalment on the bond of the complainant was a demand capable of being set off at law, and might haxre been thus set off had it fallen due before the commencement of the suit; (2 R. L. p. 354, § 18, sub. 1 st & 4th,) and of course a proper subject matter of set off here. (4 John. Ch. R. 287.) The legality of complainant’s demand, the legal impediment to the set off at law, the propriety of preventing a circuity of action, and a motion to set off of judgment, and the admitted insolvency of the defendant, render the plaintiff’s demand a proper subject of set off against the defendant’s claim and costs of suit. (Simson v. Hart, 14 John. Rep. 75, 6. Rosevelt v. Niagara Bank, 1 Hopk. 79. James v. Kimms, 5 Ves. 108, 111, 112. Reed v. Bank Newburgh, 1 Paige, 218. 2 Id. 405. Lindsey v. Jackson, 2 Id. 581.) The lien for the costs of the defendant’s attorney will not prevent this set off The attorney’s lien only attaches to the balance after the rights of the parties are settled. (Mohawk Bank v. Barrows, 6 John. Ch. R. 317. 1 Paige, 625.) The mortgaged premises having been sold under a statute foreclosure to satisfy the first instalments, the last instalment remained a personal debt against the defendant, notwithstanding the land was sold subject to future instalments, and the complainant became the purchaser. The mortgage is only an incident, being only a collateral security for the debt and the personal liability exists till the whole debt is paid some times even against an agreement. (Ainslee v. Wilson, 7 Cowen, 662. 4 Kent Com. 2d ed. 159. Jackson v. Hull, 10 John. R. 481. Globe Ins. Co. v. Lansing, 5 Cowen, 380. Jones’ opinions, 9 Cowen, 346, 352. 2 Id. 195.) A statute is equivalent to an equity foreclosure. The fact of the complainant being purchaser,'makes no difference with his rights. (2 R. S. 546, § 7. 9 Cowen, 346.) The sale, although subject to future instalments was nevertheless absolute, the purchaser taking it discharged of the lien. The land could have been sold in parcels if desirable, but the lien was indivisible, and was exhausted by the first sale. (Henus v. Dygert, 8 John. R. 257. 9 Cowen, 358.) If the land did pass to the purchaser “ subject to future instalments,” this, in judgment of law, only means that the land continues to be a fund to which the mortgagee may look for the residue of his demand, just as it was subject to all the instalments before any sale was made. In either case the mortgagee is at liberty to collect his debt of the person or the land. It is like the case of land bound by two judgments where the sheriff sells on the junior, and gives notice that there is an elder judgment. (7 Cowen, 662.) Cox had a right to be the purchaser, and he bought the land discharged of the equity of redemption, by the statute foreclosure, (Troup v. Wilson, 2 Cowen, 195,) and the original debt was diminished by the amount of money received on the sale, and not by the value of the land. (9 Cowen, 352. 5 Id. 380.) The surplus monies sued for by the defendant, should be regarded as so much land converted into money; and not being yet paid over, is subject to the control and disposition of the court, so that upon the falling due of the last instalment an equitable lien attached to the money for the satisfaction of that instalment. The case in 3 John. Ch. R. 229, relied on by the vice chancellor in Bellinger v. Shoemaker, does not apply to this case. ' The mortgagee, by the sale, intended that the mortgage quoad the instalment not due should remain a lien on the land without relinquishing the personal liability of the mortgagor It is like the case of a mortgagee holding two mortgages, and selling on the junior mortgage and giving notice that the sale is subject to the senior mortgage. If the condition of the sale was nugatory, the sale was absolute, and the remaining instalment continued confessedly a personal debt of the mortgagor. (9 Cowen, 346, 369, 380.)

      B. D. Noxon, for the respondent.
    Where money is secured to be paid by a mortgage in two instalments, the mortgagee may foreclose at law when one instalment falls due. And where the premises consist of distinct farms, tracts or lots, they shall be sold seperately ; and no more farms, tracts or lots shall be sold than shall be necessary to satisfy the amount due on such mortgage at the time of the first publication of notice of sale with interest and the costs and expences allowed by law. (2 R. S. 546, § 6.) It must follow that where the premises consist of a single village lot, no separate sale can be made, and if more be bid than the amount then due and the costs, the mortgagee has the right to hold it and apply it towards the instalment not due. The mortgagee has a right to advertise and sell to raise the amount of the instalment due, subject to the future instalment. If the mortgagee so sells and the purchaser so buys, this court will enforce the contract, but especially if the mortgagee himself becomes the purchaser under such an advertisement and sale. The effect of such purchase by the mortgagee under such an advertisement and sale must be to invest him with the title to the premises discharged from any equity of redemption in the mortgagor; and also to discharge the mortgagor from all personal liability for the unpaid instalment; the mortgagee making the premises a specific fund for the payment of such instalment. The sale having been subject to the future instalment, the surplus, after paying the first instalment and costs, was legally and equitably the money of the defendant, and he was justly entitled to recover it in a suit at law. And the complainant having elected to make the future instalment a specific lien on the premises, and the premises a fund for its payment, he has no debt to set off against the demand of the defendant. By bidding in the lot, the complainant became the owner of it and of the specific charge on it, and the latter was thereby extinguished.
   The Chancellor.

Upon the facts in this case, I cannot see that there is any foundation, either in law or equity for the claim set up by the appellant to offset the last instalment due on the bond and mortgage, against the surplus monies raised by the statute foreclosure for the previous instalments. On the contrary, if, as alleged in the answer, the value of the premises was as much or more than the amount of the last instalment in addition to the $800 bid at the sale, the respondent would have a perfect right in equity to restrain the appellant from proceeding at law on his bond to collect the amount of the last instalment. The mortgagee had the right to sell the premises discharged of the lien of the future instalment, and to retain the amount of such instalment out of the purchase money if there was any surplus beyond the amount which had then become due and the costs of the statute foreclosure. And if he chose to sell subject to the incumbrance of the instalment which was not then due, in legal intendment the premises would bring so much less on the sale ; and the purchaser would take the premises subject, in equity, to the payment of the incumbrance thereon. In such a case the mortgaged premises become, in equity, the primary fund for the payment of the amount of the incumbrance. And if the mortgagee becomes himself the purchaser, the incumbrance becomes merged in his legal estate in the equity of redemption ; and the debt is, in equity, extinguished. The equities of the parties on such a sale are similar to those which arose in the case of Tice v. Annin, (2 John. Ch. Rep. 125,) where the mortgagee having recovered a judgment at law upon the bond given with the mortgage, proceeded to sell the equity of redemption upon execution on such judgment; in which case it was held by Cnaneellor Kent that the purchaser took the premises subject to the payment of the balance due upon the mortgage. In other words, the sale being made subject to the incumbrance, the land itself became thereby, in equity, the primary fund for the payment of that incumbrance; and if the premises were sold to a stranger, the mortgagor, upon being compelled to pay the incumbrance by suit upon the bond, would be entitled to be substituted in the place of the holder of the incumbrance as to the remedy against the land as the primary fund. In such cases it is perfectly immaterial whether the mortgaged premises or the personal bond of the mortgagor was originally the primary security for the payment of the debt; provided the party who is personally liable for the payment of the mortgage is the owner of the equity of redemption at the time the premises arc sold subject to the incumbrance, or if he has sold his interest in the equity of redemption to another who is either legally or equitably bound to pay such incumbrance.

In the present case the equitable rights of the parties would have been the same, even if the appellant had held two separate and distinct bonds and mortgages of the respondent which were liens upon the same premises. And he could not, in that case, have sold on one of the mortgages by a statute foreclosure, subject to the incumbrance of the other mortgage, without making the mortgaged premises in the hands of the purchaser the primary fund, in equity, for the satisfaction of that incumbrance.

The decree appealed from is therefore not erroneous; and it must be affirmed with costs.


text:
    Safford vs. Safford and others.
    Where a father died seized of lands, which descended to his son subject to the mother’s life estate in one third of the same as her dower, and the son afterwards died in the lifetime of his mother, leaving a widow; Held, that the widow of the son was not entitled to dower in that third of the premi. sos, either during the life of the mother or after her death.
    To entitle a widow to dower in real estate of which her husband died seized of a descendible interest, he must have been seized during the coverture of a present estate in possession. And where the descent is cast upon the husband subject to dower, his estate in possession in one third of the premises is suspended, by relation, from the time the descent is cast upon In'm; although the dower is not assigned to the doweress until after his death.
    In the case of infants, if their rights in the premises appear upon the face of the master’s report as to title in a partition case, the court will correct an error into which the master has fallen as to the extent of their interests in the premises, although no formal exception has been filed to the report by their guardian ad litem.
    Tras was a bill for partition of a farm which formerly belonged to Levi Safford, the father of the complainant and the grandfather of the five infant defendants. The widow of L. Safford, the grandmother of the infants, was still living and entitled to dower in the premises. And it appeared from the master’s report that the father of the infants died shortly after the death of their grandfather, leaving also a widow ; who, according to the master’s report, was also entitled to dower in the whole of the infants’ interests in the premises.
    September 18.

      H. Hamilton, for the complainant.
    J. Porter, guardian for the infants.
   The Chancellor.

The master’s report as to the interest of the several parties in the premises is correct, except as to the supposed right of dower of the widow of John Safford in the interests of her infant children. To entitle the widow to dower, the husband must in his lifetime have been seized of a present estate or interest in possession in the oremises. And his widow’s right of dower cannot extend to any part of the premises as to which such present estate, or interest, did not vest in possession during the coverture. And where the decedent takes his estate by descent from an ancestor whose widow is entitled to dower in such estate, and which she afterwards claims and has set off to her, the decedent’s present estate in that part of the property is considered as suspended, by relation, from the time of the descent cast upon him ; so that if he dies in the lifetime of such dovveress, his own widow can never be entitled to dower in that third of the estate, even after the death of the first dovveress. The maxim dos de dote peti non debet, applies with full force to such a case. (Bustard’s Case, 4 Coke’s Rep. 122 b. Coke on Litt. 316 Hale’s note.) This principle appears to have been entirely overlooked by the master and by the guardian ad litem of the infant defendants. But in a case of infants where the whole facts appear upon the face of the master’s report upon the title, the error may be corrected by the court, although there has been no formal exception filed, by the guardian ad litem, to the report.

The decree must therefore declare that G. Safford is only entitled to dower in two thirds of the shares or interests of her infant children; and is not entitled to any dower, either present or future, in the other third thereof, as to which their grandmother is to be considered as tenant in dower. And the decree must direct a sale and distribution accordingly.


text:
    The Mayor, &c. of the City of Hudson vs. Thorne and others.
    The charter of the city of Hudson does not authorize the common council of that city to pass an ordinance prohibiting the erection of wooden or frame buildings within the city, or to limit the size of buildings which individuals shall be permitted to erect on their own premises.
    Although the corporation of a city is expressly authorized by its charter to prevent or regulate the carrying on of manufactures dangerous in causing or promoting fires, it cannot make a by-law to prohibit one citizen from carrying on such dangerous business and to permit others to do so; as all by-laws made by a corporation must be reasonable.
    The court of chancery will not interfere by injunction to enforce the penal laws of the state, or the by-laws of a corporation, unless the act sought to be restrained is in itself a nuisance.
    This was an application to dissolve an injunction restraining the defendants from erecting a building in the city of Hudson, upon a vacant lot owned by them, intended to be used as a hay press. The bill set out that part of the city charter which authorized the common council, from time to time, to pass such ordinances as they should think proper, to remove or prevent the construction of any fire place, hearth, chimney, stove, oven, boiler, kettle or apparatus used in any house, building, manufactory, or business, which might be dangerous in causing or promoting fires; to regulate or prevent the carrying on of manufactures dangerous in causing or promoting fires ; to adopt and establish such regulations for the prevention or suppression of fires as might be necessary; and generally to make all such rules, regulations, by-laws and ordinances, for the good government of the city and the trade and commerce thereof, as they might deem expedient, not repugnant to the constitution and laws of the state ; and to enforce the observance thereof by inflicting penalties upon any person for the violation of any such ordinances of the common council, not exceeding twenty-five dollars for. any one offence. And the complainants further stated, that in pursuance of the powers so given to the common council, they did, in July, 1838, duly pass an ordinance by which, among other things, it was ordered that no person should erect or construct, or cause to be erected or constructed, any wooden or frame barn, stable or hay press, within certain specified limits in the city of Hudson, of more than thirty feet in width and thirty feet in depth, without the permission of the common council, expressed by a resolution of the board that such building was not dangerous in causing or promoting fires ; and that any person who should violate such ordinance should incur a penalty of $25, and a further penalty of $25 for every twenty-four hours such violation should continue. The complainants also charged that subsequent to the passage of the ordinance the defendants had commenced the erection of a wooden or frame building, within the prohibited limits, of the length of 120 feet and of the breadth of about 48 feet, with a shed of the same length and of the breadth of twelve feet attached thereto, without the permission of the common council as specified by the ordinance ; which building was to be occupied for stowing and pressing hay; that on the opposite side of the street from where the building of the defendants was being erected, and also southerly and easterly therefrom, there were numerous buildings of brick and wood compactly built, which were much exposed and liable to be destroyed by fire ; and that the burning of the defendants’ building would produce an immense destruction of valuable property. The complainants further charged that the erection of the defendants’ building, and its occupation for storing and pressing hay, by reason of the combustible nature of the hay, the extent of the building, and its proximity to other buildings, would be extremely dangerous in causing and promoting fires, and would greatly prejudice the public interests. And inasmuch as the penalty which the complainants were authorized to inflict for the violation of their ordinance was entirely inadequate and ineffectual to prevent the erection of the defendants’ building, they prayed that the defendants might be decreed to take down and remove the said building, and might be restrained by injunction from proceeding further in the erection and completion thereof, and from using the same as a hay press or barn, and from storing, pressing and keeping hay, straw, or other combustible materials in such building; and for general relief.

      September 18.

      S. Stevens & K. Miller, for the complainants.

      John W. Edmonds, for the defendants.
   The Chancellor.

The ordinance of the common council in this case is entirely directed against the erection of the building, and not against its occupation in such a manner as to render it dangerous in the promotion or originating of fires. And I infer from the affidavits that the ordinance was so framed for the purpose of merely preventing the erection of such buildings; as it appears there were such buildings already in existence, not only in other compact parts of the city but also within the prohibited limits, the occupation of which for the storing and pressing of hay the common council did not intend to restrain. It is not necessary, therefore, for me to inquire whether the common council, by the city charter, have the power to pass a by-law prohibiting the storing or pressing of hay within the compact parts of the city, as a business or manufacture which is dangerous in causing or promoting fires. I am satisfied, however, that under the provisions of this charter the legislature never intended to give to the common council the power to restrict the erection of wooden or frame buildings within the city, or to limit the size of buildings which individuals should be permitted to erect on their own premises. And as the ordinance is an attempt to exercise such a power only, it is inoperative and void. If the manufacture of pressed hay within the compact parts of the city is dangerous in causing or promoting fires, the common council have the power expressly given by their charter to prevent the carrying on of such manufacture ; but as all by-laws must be reasonable, the common council cannot make a by-law which shall permit one person to carry on the dangerous business, and prohibit another, who has an equal right, from pursuing the same business. Neither have they the right to permit the dangerous manufacture to be carried on m buildings already erected, and to prohibit these defendants whose building was destroyed by an incendiary, from rebuilding the same for the purpose of carrying on a manufacture which is permitted to others.

Again ; it is no part of the business of this court to enforce the penal laws of the state, or the by-laws of a corporation, by injunction, unless the act sought to be restrained is a nuisance. And it is nowhere alleged in this bill, that the manufacture of pressed hay within the compact parts of the city of Hudson, in a building more than thirty feet square, is in itself a public nuisance. If it is so, the complainants will probably have no difficulty, upon an ordinance properly framed, or in a proceeding by indictment, to suppress the carrying on of the illegal business without the aid of the strong arm of this court. Upon the whole, I am satisfied that this bill furnishes no sufficient ground for the interference of the court by a preliminary injunction. And even if the case made by the bill was prima facie sufficient to entitle the complainants to relief, it was a case in which it was improper for the master to grant an injunction ex parte, and without requiring the complainants to give security to pay ihe injury which might be caused by the injunction, or at least requiring them to give their own bond, so as to make themselves responsible for the damages which the defendants might sustain by the injunction, if it should afterwards appear that the complainants xvere in the wrong. (Sullivan v. Judah, 4 Paige’s Rep. 444.) The ihjunctioa must therefore be dissolved with costs.