text:
    Tappan vs. Gray
    The provision of the revised statutes authorizing the governor to supply vacancies that happen during the recess of the senate in offices to which an appointment has been made by the governor with the consent of the senate, does not authorize him to make an appointment where the office is not actually vacant, and where the duties of the office continue to be performed by the officer whose term of office has expired, as authorized by a previous section of the revised statutes.
    Where a flour inspector was illegally appointed by the governor, during the recess of the senate, and was in the actual discharge of the duties of the office, and the former inspector claimed the right to hold over until a successor was duly appointed by the governor with the consent of the senate; Held, that the court of chancery had no jurisdiction to appoint a . receiver to discharge the duties of the office until the rights of the parties could be legally determined, or to receive the fees and emoluments of the office in the meantime.
    Although the constitution has prescribed a particular mode of appointing certain officers, and has limited the term of office in particular cases, it is competent for the legislature to provide for a temporary discharge of the duties of the office until such office can be filled in the manner prescribed by the constitution.
    April 5,
    This was an appeal by the defendant Gray from the decision of the vice chancellor of the first circuit overruling a demurrer to the complainant’s bill. On the 58th of April» 1837, the complainant was appointed by the governor, with the consent of the senate, to be the inspector of flour for the city of New-York, in the place of Farr the then incumbent, whose term of office was to expire on the 9th of May then next. He accepted the office and entered upon the duties thereof on the 8th of May, 1837, and continued to discharge those duties until the alleged intrusion of the defendant into such office on the 27th of May, 1839. The legislature adjourned its session in the last mentioned year on the 7th of May and on the 23d of the same month the governor, without having obtained the previous consent of the senate, appointed and commissioned the defendant to be the flour inspector of New-York, in the place of the complainant. The bill, after setting forth these facts, alleged that the defendant, claiming by virtue of such appointment to be the duly qualified flour inspector, did upon the 23d of May, 1839, intrude himself into that office and enter upon the discharge of its duties, and oust the complainant from the office; and was continuing to discharge its duties, and to receive the fees and emoluments thereof, at the time of filing the bill in this cause in June of the same year. The complainant also charged in his bill that the defendant was wholly insolvent and unable to respond to him for the fees and emoluments of the office which might be received by Gray before the question as to his right to the office could be settled by legal proceedings, which had been instituted for that purpose; and concluded with a prayer for an injunction and receiver, and for general relief.
    The vice chancellor decided that the bill showed a prima facie case of intrusion by the defendant into an office belonging to the complainant; and that the insolvency of Gray was sufficient to sustain the bill, for the preservation of the fees and emoluments of the office until the right to the same could be determined by the proper tribunal, upon an information in the nature of a quo warranto. He therefore overruled the demurrer and ordered the defendant to answer the bilk (See 3 Edw. Ch. Rep. 452.)

      JD. Graham, for the appellant.
    J. W. Edmonds, for the respondent.
   The Chancellor.

If the vice chancellor was right in the conclusion, that the complainant was entitled to discharge the duties of the office of flour inspector, after the appointment by the governor during the recess of the senate, and that such appointment of the defendant to the office was illegal and unautherized, I think he erred in supposing that this court had jurisdiction to afford the complainant any relief, at this time. This court certainly ought not to assume the jurisdiction to oust an officer in no way connected with the administration of justice here, and over whose appointment it has no control, from an office, the duties of which he is discharging under color of an appointment from the executive of the state, until his right to such office has been settled in the mode prescribed by the revised statutes for the determination of his claim. That, however, would be the necessary effect of an injunction, such as is prayed for in this case. For the receiving and intermeddling with and enjoying the fees, profits, and advantages of the office, are so connected with the proper-discharge of the duties of the office itself, that they could not be separated without rendering the office of no benefit whatever to the defendant, should he finally succeed in establishing his right to it on the quo warranto. Such relief, therefore, could not be granted without depriving the public of the benefit which the inspection law contemplates, until the termination of this litigation. And it would be equally inconsistent with public policy, and the rights of those who are interested in having the duties of the office properly discharged, to appoint a receiver of the fees and emoluments of such an office. The appointment of a receiver to discharge the duties of the office, in connection with the receipt of the fees and emoluments, would be still more objectionable in principle ; as it would in effect be the assumption of a right by this court to make a temporary appointment of a public officer, whose appointment is by law required to be made by the executive department of the government.

The question as to the power of the governor to appoint the defendant during the recess of the senate, is one which is not without its difficulties. By the 15th and 16th sections of the title of .the revised statutes relative to administrative officers, (1 R. S. 115,) inspectors of flour are to be appointed by the governor with the consent of the senate, and to hold their offices for,,two years. And by the 42d section of the next succeeding title, (Idem, 123,) the governor is authorized to supply all vacancies, which may happen during the recess of the senate, in any office to which an appointment shall have been made by the governor with the consent of the senate, except the office of chancellor, &c., by granting commissions which shall expire at the end of twenty days from the commencement of the next meeting of the senate. This provision embraces masters in chancery and some other officers, who by the constitution, are only to be appointed by the governor with the consent of the senate. But as it was merely intended to make a temporary provision for the performance of the duties of these offices until the offices could be filled in the constitutional mode, I presume it is within the legitimate powers of legislation. And similar provisions are made, in other parts of the revised statutes, for the temporary discharge of the duties of comptroller, treasurer, sheriff, county clerk, See., in a manner different from the constitutional mode of election or appointment. In the case under consideration the complainant was appointed to the office of flour inspector, to supply the place of an incumbent whose term of office would expire on the 9th of May, 1837. And as he alleges in his bill he did not enter upon the duties of the office previous to the 8th of that month. The vacancy in his office, if any, must therefore have occurred after the adjournment of the legislature, on the 7th of May, 1839. And if the provisions of the revised statutes to which I have referred were alone to be considered in determining the question, I think there could not be any reasonable doubt that this office became vacant at the end of the two years, and during the recess of the senate; so as to authorize the governor to make a temporary appointment to supply such vacancy.

But the sole object of these temporary appointments, and in a mode different from that prescribed by the constitution, is supposed to be for the purpose of preventing a public injury for the want of some person to discharge the duties of the office until a regular appointment can be made. The counsel for the complainant, therefore, insists that there cannot be a vacancy in the office, within the intent and meaning of the 42d section before referred to, while the former incumbent continues to discharge the duties of such office, under the section which authorizes him to do so until a successor in the office is duly qualified. (1 R. S. 117, § 9.) That section expressly provides that every officer duly appointed, except the chancellor, justices of the supreme court and circuit judges, who shall have duly entered on the duties of his office, shall continue to discharge the duties thereof, although his term of office shall have expired, until a successor in such office shall be duly qualified. It will be seen that this provision is very extensive in its operation ; and, like those giving the governor the power to supply vacancies by temporary appointments, it not only embraces a class of officers the duration of whose offices is within the control of the legislature, but also many of another class the limitation of whose terms of office is fixed by the constitution. There is much reason to doubt, therefore, whether the vacancies which are to be supplied temporarily by the governor, under the 42d section and other provisions of the statutes, embrace the class of cases in which provision is made for a temporary discharge of the duties of the office by the person whose term of office has expired by lapse of time, and who continues to discharge those duties. This view of the question is strengthened by the opinion of the late chief justice in the case of The People v. Van Horne, (18 Wend. Rep. 518.) In reference to a similar provision authorizing town officers to hold over until their successors in office were duly elected or appointed and qualified, he says, an office cannot be said to be vacant while any person is authorized to act in it, and does so act.

In the case under consideration the complainant was authorized to perform the duties of the office after the expiration of the two years for which he was appointed, and did so continue to perform them until after the appointment of the defendant to the same office, by the governor without the consent of the senate. I conclude, therefore, that the defendant, at the time of filing the complainant’s bill, had intruded himself into an office which he was not then legally entitled to, under the provisions of the revised statutes, and that the complainant is entitled to the fees and emoluments of the office until he is superseded by a valid appointment of a successor. But upon the ground that at the time of the filing of this bill the court of chancery had no jurisdiction or power to afford him any relief, the decree of the vice chancellor must be reversed and the demurrer allowed.


source: Caselaw Access Project

author: The Chancellob.

license: Public Domain

text:
    Hayden, receiver, &c. vs. Bucklin & Brown.
    A soi vico of the subpoena upon the defendant, subsequent to the filing of the complainant’s bill, is necessary to create a lis pendens as against a bona fide purchaser of the subject matter of the litigation, in the court of chancory, who has not actual notice of the suit.
    But the filing of the bill, and taking out a subpoena and making a bona fide attempt to serve it, is the commencement of the suit as against the defend, ant himself, so as to prevent the operation of the statute of limitations, if the suit is afterwards prosecuted with due diligence.
    And it seems that such a commencement of a suit by a judgment creditor is sufficient to giv^ the complainant in such suit a preference over the complainant in a similar suit afterwards commenced by another judgment credi. tor of the defendant.
    Personal service of the subpoena is not necessary to create a lis pendens which is constructive notice to third persons of the commencement of a suit in chancery; and where the subpoena cannot be served personally, a service upon the defendant’s wife, or other member of his family of suitable age and discretion, at the defendant’s place of residence, will be sufficient.
    And where the defendant is proceeded against as an absentee, under the statute, it seems that the actual publication of a notice of the order for him to appear and answer the complainant’s bill, is equivalent to a service of the subpcena at the defendant’s residence, in creating a lis pendens.

    April 5.
    This was an application to dissolve an injunction upon the bill and answer, and a stipulation of the solicitors of the parties containing an admission of the facts in the case. Several creditors of L. W. Patten having recovered judgments against him and having their executions returned unsatisfied, filed separate bills against him to reach his equitable interests and choses in action, &c. These bills were filed in the afternoon of the 8th of January, 1840, in the register’s office at Albany, and injunctions and subpeenas were duly issued at the same time, and were served upon Patten at his residence, about 80 miles from Albany, on- the 10th of the same month. On the 9th of January, intermediate the issuing and service of the subpeenas, Patten made a' general assignment of all his personal property, debts, and choses in action to the defendants in this suit, to secure them for the amount of three notes, of about $1100, which they, at the time of such assignment, gave to E. Corning & Co. in payment of a debt due to the latter from Patten, and to secure them for other liabilities for him, and in trust for the payment of other creditors in the order- of priority specified in such assignment. The receiver who had been appointed in the creditors’ suits, and to whom Patten had subsequently made a general assignment under the order of the court, insisted that Bucklin & Brown, having taken their assignment subsequent to the filing of the bills and issuing the subpeenas in those suits, were to be considered as purchasers of the property pendente lite; and that he was therefore entitled to the assigned property as such receiver.

      S. Beardsley O. B. Matteson, for the receiver.

      W. Crafts, for the defendants Bucklin and Brown.
   The Chancellob.

There is no dispute in relation to the bona fide nature of the transaction between Patten and his assignees. Although the assignor may have anticipated the filing of creditors’ bills against him, assoon as the executions, which were issued on the sixth of January, could be returned unsatisfied, it appears to be impossible that when he made the assignment on the 9th of January at Winfield, he should have known that bills had been actually filed and subpoenas issued thereon at Albany, 80 miles distant, on the afternoon of the preceding day. And both of the defendants in this suit deny that they had any notice of the filing of the bills, or of the issuing of the subpoenas in the suits against Patten, at the time of the assignment to them. Nor did they suspect or believe at that time that any such proceedings had been instituted. The only question for consideration therefore is, whether the mere issuing of the subpoena is to be deemed a lis pendens in this court, so as to affect the validity of a transfer of the subject matter of the litigation here, as a purchase pendente lite.

Previous to the statute of Anne, (4 Anne, ch. 16, § 22,) it was not necessary to file the complainant’s bill before the issuing and service of the subpoena to appear and answer ; but it was sufficient if the bill was filed afterwards. And the suit, as against the defendant himself, was then considered as commenced from the teste of the subpoena, as in the case of suits at law commenced by original writs. Such appears to have been the decision of Lord Nottingham, in the case of Pigott v. Jfower, in 1677, which is copied by Mr. Swanston from his lordship’s manuscript notes. (3 Swans. Rep. 536.) And at the present day the filing of a bill and taking out a subpoena thereon, and making a bona fide attempt to serve it without delay, may be considered as the commencement of the suit for the purpose of preventing the operation of the statute of limitations; if the suit is afterwards prosecuted with due and reasonable diligence. (Webb v. Pell, 1 Paige’s Rep. 564.) Probably such a commencement of a suit would also be sufficient to give the complainant in a creditor’s bill a preference over a similar suit subsequently commenced against the same defendant, although the subpoena in the last suit should be first served; as in the case of the suing out of two original writs, against the heir at law, by different specialty creditors of the ancestor. (See Gree v. Oliver, 4 Bac. Abr. tit. Heir and Ancestor, F.; Burgh v. Francis, Cases Temp. Finch, 29.) But even before the statute of Anne, the mere issuing of a subpoena was not considered the commencement of a lis pendens, as to a stranger to the suit. But to charge him with constructive notice of the pendency of the suit, and subject him to the consequences of a purchase pendente lite, it was necessary that the bill should be filed and the subpoena served. (Anon. 1 Vern. Rep. 319.) And Sir Edward Sugden, the late chancllor of Ireland, in the recent edition of his valuable work on the law of vendors and purchasers, (3 Sug. Law of Vend. 458,) after stating the general principle that a lis pendens is of itself notice to a purchaser, says: c< A subpoena served is not, however, a sufficient lis pendens unless a bill be filed; but when the bill is filed the lis pendens begins from the service of the subpoena.” (See also Moor v. Welsh Copper Company, 1 Eq. Ca. Abr. 39, pi. 14.) This common law rule of requiring purchasers at their peril to take notice of the pendency of suits in courts of justice, for the recovery of the property they are about to purchase, although it is nearly impossible that they should actually know that such suits have been commenced, has always been considered a hard rule, and is by no means a favorite with the court of chancery even in England. (See Sorrell v. Carpenter, 2 Peer Wms. 483.) And in all the cases I have been able to find in the courts of this country, a service of the subpoena, as well as the issuing of the same, has been considered necessary to create a lis pendens, as against a purchaser who had no actual notice that he was purchasing property the title to which was in litigation.

Thus, in Murray v. Ballou, (1 John. Ch. Rep. 576,) Chancellor Kent says : “ The established rule is that a lispendens duly prosecuted, and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree ; and the lis pendens begins from the service of the subpoena, after the bill is filed.” This last point, it is true, was not before him for consideration ; as the suit of Green v. Winter had been pending more than a year before the purchase by Ballou of a part of the subject matter of the litigation. But the dictum is still entitled to consideration as the opinion of a very distinguished equity judge. In the case of Lyle v. Bradford, (7 Mon. Rep. 116,) the court of appeals in Kentucky recognized the distinction between the commencement of a suit,by the mere issuing of process against the defendant therein, and the creation of a lis pen-dens which is to affect the rights of purchasers of the subject matter of the litigation in such suit. And in reference to the latter, Judge Ousley says : “ It is true that for some purposes there is said to be no lis pendens until after process is served; and we entertain no doubt as to the correctness of the assertion in reference to the rights of strangers.” So in Baldwin v. Love, (2 J. J. Marsh. Rep. 493,) where the complainant amended his bill, after answer, so as to subject other property to the payment of his demand, the same court decided that a purchaser of such property, before the defendant in the suit was duly notified of such amendment of the original bill, was not to be considered as a purchaser pendente lite. And in the case of Miller v. Kershaw & Connor, (1 Bailey’s Eq. Rep. 479,) the court of appeals of South Carolina decided that there was no lis pendens, as against a purchaser from the defendant in a chancery suit, until the service of the subpoena; and that an acceptance of service of the subpoena as of a day prior to the sale of the property, under a previous agreement to accept the service at that time, would not make the decree binding upon such property in the hands of the purchaser.

It may "be proper to observe, however, that a personal service of the subposna upon the defendant is not necessary to create a lis pendens where he has a known residence in this state. For in case of his absence from home the subpoena may be served at his residence, upon his wife or servant, or some other member of the family of suitable age and discretion •, although the complainant’s bill cannot be taken as confessed against him on such a service, without instituting further proceedings to compel his appearance. (Thomas v. The Earl of Jersey, 2 Myl. & Keen, 398. Smith v. Parke, 2 Paige’s Rep. 298. 1 Grant’s Pr. 125. 1 Jfewl. Pr. 75.) And where the defendant is proceeded against as an absentee under the statute, the actual publication of the notice of the order for him to appear and answer the complainant’s bill would probably be considered as equivalent to a service of the subpoena at the defendant’s place of residence, in creating a lis pendens.

In the case before me, the defendants cannot be considered as purchasers or assignees of the property of Patten pendente lite, so as to subject the assigned property to the claims of his creditors in the suits in which the receiver was appointed. And the injunction must, therefore, be dissolved.


author: The Chancellor.

text:
    Ruckman vs. Astor.
    A purchaser of mortgaged premises, which were redeemed within the time allowed by the act of 1837 concerning the sale of real estate by mortgage, is not entitled to retain the rents and profits intermediate the sale and the time of the redemption, in addition to the amount of his bid and the ten per cent interest thereon; although the owner of the equity of redemption neglected to give the requisite security to prevent the purchaser from taking possession of the property immediately after the confirmation of the report of the sale.
    A sale and assignment of the equity of redemption of mortgaged premises, where the mortgagee is in possession, necessarily carries with it to the purchaser the right to an account for the rents and profits of the premises, as an incident to the right of redemption, and as an equitable offset against the amount due upon the mortgage.

      Upon a decree of strict foreclosure, where the mortgagee is in possession of the mortgaged premises, if such premises are redeemed within the time allowed by the decree for that purpose, the mortgagee must account to the owner of the equity of redemption for the rents and profits received subsequent to the decree.
    April 5.
    This was an appeal from a decision of the vice chancellor of the first circuit allowing a demurrer to the complainant’s bill. In October, 1835, S. Geer mortgaged a lot of land, in the city of New-York, to the defendant; the equity of redemption in which lot was by divers mesne conveyances transferred to Root & Stuyvesant. The mortgage was afterwards foreclosed in this court, and Astor became the purchaser of the mortgaged premises, under the decree, on the 9th of May, 1838. And a few days after-wards he received the master’s deed and entered into the receipt of the rents and profits of the mortgaged premises ; the owners of the equity of redemption not having given security to the purchaser, for the value of the possession and use of the premises, &c. as required by the act of the 18th of April, 1838. Two days before the expiration of the year allowed by law for the redemption of the premises, Root & Stuyvesant sold and conveyed to the complainant all their claim, right, title, interest and demand of, in and to the mortgaged premises, and all their right to redeem the same from the operation and effect of the sale. And on the 8th of May, 1839, he redeemed the premises, by paying to the master the amount of the purchase money with ten per cent interest thereon; and took from the master a certificate of such redemption, which was duly recorded as directed by the statute. The bill in this cause was thereupon filed for an account of the rents and profits of the premises during the year, which Astor had received but refused to account for and pay over to the complainant.

      S. Glover, for the appellant.

      J. Miller, for the respondent.
   The Chancellor.

The first question presented by the demurrer in this case is, whether the purchaser of mortgaged premises which were redeemed within the time allowed by the act of 1837 for that purpose, was entitled to the rents and profits received by him, intermediate the sale and the time of redemption, in addtion to his purchase money and ten per cent interest thereon, where the owner of the equity of redemption neglected to give security to prevent such purchaser from taking possession 1 Upon this question I think the vice chancellor came to the correct conclusion. Where the mortgaged premises were insufficient to pay the amount due thereon, so that the mortgagee would be compelled to bid the full value of the premises at the time of the sale, to enable him to recover his debt and costs, the legislature probably would not have had the right to deprive him of the use of the premises for a year, to give the owner of the equity of redemption a further time to redeem, without giving security for the use of the property in the mean time, in case he should not elect to redeem. For that would, to a certain extent, impair the obligation of the contract, as to a mortgage executed before the redemption law took effect.

The spirit and intent of the original redemption law unquestionably was to give to the purchaser the amount of his purchase money and interest only, at the rate of ten per cent, if the premises should be redeemed. But as, by the rules and practice of this court, the purchaser at the master’s sale was to be let into possession as soon as the eight day order nisi to confirm the report of the sale had become absolute, it became necessary to alter the rule on this subject so as to protect the rights of both parties; by permitting the owner of the equity of redemption to retain the possession, upon his giving security for the rents and profits if he should not elect to redeem, and allowing the purchaser to take possession for his own protection where such security was not given. The 135th rule as amended, therefore, was a judicial construction as to the spirit and intent of the redemption act of 1837. And that construction had been adopted and sanctioned by the legislature, in the amendatory act of 1838, previous to the purchase by this defendant. The purchaser in this case, therefore, was in the same situation as a mortgagee in possession after a decree for a strict foreclosure, previous to the expiration of the time allowed by such decree for the redemption of the premises. There, in case the mortgage money mentioned in the decree, with the interest thereon, is not paid within the time limited for that purpose, the equity of redemption is forever barred, and the mortgagee will be permitted to retain the rents and profits which he has received subsequent to such decree. But if the redemption takes place, as authorized by the decree, the mortgagee must relinquish the possession, to the owner of the equity, of redemption ; and must account to him for the rents and profits of the premises while he held the possession, after deducting the necessary disbursements for repairs, taxes, &c.

The vice chancellor allowed the demurrer upon the supposition that the conveyance and assignment of the equity of redemption to the complainant, as the same is stated in the bill, was not broad enough to transfer to him the rents and profits which had accrued after the sale and before the premises were redeemed. In this construction of the assignment to the complainant, I think the learned vice chancellor overlooked the principle upon which this court proceeds in allowing the redemption of mortgaged premises. A sale and assignment of the equity of redemption, where the mortgagee is in possession, necessarily carries with it to the purchaser the right to an account for the rents and profits of the mortgaged premises, as an incident to the right of redemption. For he has the right to offset the amount of the rents received by the mortgagee, while in possession, against the principal and interest due upon the mortgage. Thus, in the anonymous case of what Lord Hardwicke called the prowling assignee, who for a very inconsiderable sum bought an equity of redemption of mortgaged premises of which the mortgagee had been in possession for a long time, his lordship, though it w.as with great reluctance, found himself compelled to decree an account of the rents and profits, as well as a redemption of the mortgaged premises, in his favor. {Jitk. Rep. 313.) The assignment of the equity of redemption to the complainant in this case not only carried with it the right to redeem the premises, and thereby to invest himself with the same estate therein which the former owners of the equity of redemption had before the decree of foreclosure, but also the right to the intermediate rents and profits received by the purchaser, as incident to such redemption. I think the language of the assignment itself shows that the parties thereto must have understood that the complainant was to be entitled to every right and interest in the mortgaged premises, and in the rents and profits thereof, which the assignors themselves had previous to such assignment.

The decree appealed from ig therefore reversed with costs, and the demurrer is overruled. The defendant must pay the costs upon the appeal and upon the demurrer; and he answer the bill within the usual time, unless further time is given by the vice chancellor, to whom the proceedings are remitted.


text:
    Irving and others, executors, &c. vs. De Kay and others.
    Where the testator, by his will, made in 1831, expressed his desire that his estate should not be divided until February, 1840, and directed that his wife ohould from time to time receive such sums out of the estate as she should request, previous to the division of the estate, to enable her to maintain the testator’s family; and in case of her death before the division of the estate, he directed his executors to devote so much money to maintain the family as they should consider best; and he further directed such executors to sell so much of his real estate from time to time as they should judge necessary or prudent; and to borrow money upon mortgages of the estate; and the testator further directed a division of the estate to be made on the first of February, 1840, and that all his estate and all the property which his children had derived from him, or had purchased with funds furnished by him, should be valued by appraisers to be appointed by his executors, and that the aggregate amount of such valuation should be . divided into five equal parts, and that so much of the said aggregate estate as should be equal in value to one of said five parts should go to each of his children and their respective heirs, including in the portions of each the property which each one had derived from or purchased with funds furnished by the testator; and lie' authorized his executors to distribute the estate in kind, or to sell the same and divide the proceeds thereof, as they should judge best; and the testator further directed that two specific sums should be set apart and invested, for the payment of an annuity to his mother, and a legacy to B. and her daughter, and the testator then devised all his estate to his executors in trust, to enable them to carry into effect the provisions and directions of the will; Held, that the bequests of the annuity and the legacy were valid, although the limitation over of the principal sum, to be invested for the payment of such annuity, was void; as the annuity could be separated from such principal sum, by taking so much of the estate as would be sufficient to purchase the annuity upon the principal of valuing life annuities.

      Held also, that the trust to receive the rents and profits, after the death of the widow of the testator and previous to the division of the estate, and to apply so much thereof to the support of the surviving members of the family, as the executors should consider best, was void, as this rendered the trust estate, or so much thereof as was not necessary to be sold to pay debts and legacies, inalienable for a term in gross and not determinable at the expiration of not more than two lives in being at the death of the tea, tator.

      Held also, that although the trust to provide for the surviving members of the family, after the death of the widow of the testator, was illegal and void, yet as it was wholly disconnected from the trust to receive the rents, &c. and apply them to the support of the widow and such of the family as chose to live with her, which was necessarily limited to the life of the widow, such void trust did not render the trust estate invalid, in the hands of the trustees, during the life of the widow.

      Held further, that the power to divide the estate in 1840, was a mere power in trust which did not require the continuance of the legal estate in the trustees to sustain it; and that if the power to sell at the end of an absolute term, not depending on lives in being at the death of the testator, would render the estate inalienable until February, 1840, that part of the power would alone be void, and could not prevent the execution of the residue of the power authorizing a division or partition of the property.

      Held also, that the provisions of the will did not deprive the widow of the testator of her dower in the real estate of her husband, so as to require her to elect between such dower and the provision made for her by the will.
    An estate which is inalienable for an absolute term, and which is not so limited as to be certainly determinable at the expiration of not move than two lives in being at the death of the testator, is void in its creation.
    Any legal trust is sufficient to sustain a devise or conveyance to the trustee, of an estate commensurate with such trust, without reference to other illegal trusts which the testator or grantor has attempted to create in the same estate as distinct and separate trusts.
    The intention of the testator, when ascertained from an examination of the will in connection with the situation of his property, &c. at the time of making the will, must be carried into effect, so far as that intention is consistent with the rules of law.
    Although some of the objects for which a trust is created, or some future interests limited upon the trust estate are illegal, or invalid, if any of the purposes of the trust are valid, the legal title vests in the trustees during the continuance of the valid objects of the trust, unless the legal and valid objects of the trust are so mixed up with those which are illegal and void that it is impossible to sustain the one without giving effect to the other.
    Every disposition, by a testator, of an estate or interest in the rents, or income of his real or personal estate, which, if valid, would have the effect of rendering the property inalienable for a longer period than is allowed by law, and every remainder or. other future estate or interest limited upon a trust which would have that effect, must be considered and treated as absolutely void and inoperative, in determining the question as to the validity of a devise of the legal estate to trustees, or the validity of any other provision of the will.
    Where the legal purposes for which an express trust of real property was created cease, the estate of the trustees in the trust properly also ceases.
    Where an express trust is created which is not authorized by law, no estate vests in the trustees, but the trust, if directing or authorizing the perform, anee of any act which may lawfully be performed under a power will be valid as a power in trust.
    A trust to mortgage lands for the benefit of creditors at large whose debts are not a charge upon such lands is void, it not being one of the express trusts authorized by the revised statutes.
    April 5.
    The original bill in this cause was filed in February, 1840, by the executors and executrix of H. Eckford, deceased, to obtain a construction of the will of the decedent, and the direction of the court as to the manner in which the complainants were to execute their trust in relation to the distribution of his estate among his devisees and legatees. And his heirs and next of kin, except one of the sons who had conveyed all his interest in the estate to his mother, the executrix, were made parties to the suit. Mrs. Eckford having afterwards died, the proceedings were continued by a bill of revivor and supplement. Henry Eckford died at Constantinople in November, 1832, having in June, 1831, executed his will in due form of law to pass real and personal estate ; leaving four children and one grand child his only heirs at law. By the will of Mr. Eckford, after expressing a desire that his estate should not be divided until February, 1840, but be improved and disencumbered as far as practicable or judicious, and that in the mean time such of his family as should wish to do so should continue to reside with his widow and be maintained respectably by his estate, he directed that his wife should from time to time receive such sums out of the estate as she should request, previous to the division of the estate, to enable her to maintain such family, without being accountable for the sums she should so receive. And in case of her death before the division of the estate, he directed his executors to take such measures and devote so much money to maintain and keep the family together as they or a majority of them should consider best. He further directed his executrix and executors to sell and convey so much of his estate from time to time as they or a majority of them should judge to be necessary or prudent, and to borrow money on the credit of the estate and secure the same by mortgage. But he requested them to sell the real estate on the east side of the city first, and that the residue of the estate in the city should be disencumbered and kept until his estate wras divided. He then directed a division of his estate to be made on the first of February, 1840, all debts and charges against it being first paid and the monies to secure an annuity to his mother, and a legacy to Mrs. B. and her daughter, being first invested and deducted, in the following manner : ££ All my estate, and all the property which the husband of my daughter Janet J. E. De Kay has derived from and purchased with funds furnished by me, and which has not been received back by me, and all the real estate which my said grand daughter Janet Joseph Halleck Drake has inherited from her parents severally, or either of them, and which her said parents severally or jointly originally received or derived from me, shall be valued in one united valuation, to be made by appraisers to be appointed by my executrix and executors, or a majority of them, or of the survivors of them ; and the aggregate amount of such United valuation shall be divided into five equal parts. And so much of the said aggregate estate as shall be equal in value to one of the said five parts shall go to each of my children, Janet, the wife of J. E. De ICay, Eliza, the wife of G. F. Irving, Joseph, and Henry, and their respective heirs, and the like portion shall go to my said grand daughter J. J. H. Drake and her heirs ; including, however, in the portion of my daughter Janet the property which her husband J. E. De Kay has derived from and purchased with funds furnished by me and which has not been received back by me, and in the portion of my said grand daughter all the real estate which she has inherited from her parents severally or either of them, and which her parents severally or jointly originally received or derived from me j so that finally, including what sum of the said shares shall already have been derived from me and what remains to be distributed, my said four children and grand child, and their respective heirs, shall have received from me an equal share of property, one not more than another.” The testator also authorized his executrix and executors to distribute the estate in kind, or to sell the same and divide the proceeds thereof as they or a majority of them should judge best. And after directing two specific sums to be set a part and invested as soon as convenient after his death, for the payment of an annuity to his mother and the legacy to Mrs. B. and her daughter, he concluded by devising all his estate to his executrix and executors and the survivors of them in trust to enable them to carry into effect the provisions, intentions, directions, and purposes of his will; with power to execute deeds and instruments and to do every thing necessary to effectuate the intentions thereof; and appointing his wife executrix and the four surviving complainants his executors, and the guardians of the persons and estates of such of his children as were then infants and of his grand daughter J. J. H. Drake, now the wife of G. C. De Kay, one of the defendants in this suit.
    The bill after setting out the will and the foregoing facts, alleged among other things that Mrs. Eckford claimed the right of dower in the estate of her husband, that there were large outstanding claims against the estate, and several suits pending against the complainants, in favor of the United States, and others, for the purpose of enforcing those claims 5 that some of the heirs at law and next of kin of the decedent claimed and insisted that the provisions of the will were illegal and void ; that the complainants had sold and conveyed some parts of the real estate in -which the widow had joined for the purpose of making a valid and perfect title to the purchasers thereof, under a written agreement with her co-executors that she should receive compensation for her dower therein, out of the funds of the estate, if she should be found to have been entitled to dower. The bill also set forth the several matters which were in controversy between the complainants in the case of Eckford and others v. De Kay and wife and others, as the same are stated in the report of that case in this court, (8 Paige’s Rep. 89 5) alleging that the complainants had appealed from the decision of the chancellor : and the complainants insisted that if the decree of the court should be confirmed by the court for the correction of errors, the value of the property in the neighborhood of Love Lane Which was in controversy in that suit, should be estimated at its value in February, 1840, in ascertaining the distributive share or portion of the grand daughter in the estate of the testator, under his will.

      D. Lord ¿y F. B. Cutting, for the complainants.
    <3. Wood & JV*. Dane Ellingwood, for G. C. De Kay and wife.
   The Chancellor.

The first objection of G. C. DeKay and wife to the validity of the will is, that it suspends the power of alienation of the estate for a longer time than is authorized by the revised statutes. There is no question as to the validity of the bequests of the annuity to the mother of the testator, and of the income of the $5000 to Mrs. B. for life and of the principal to her daughter ; as the will directs that part of the fund to be carved out of the estate and invested separately as soon as convenient after his death. It is true he contemplates the investment of the principal, which will be necessary to raise the annuity for his mother, to be retained until her death, and then to be divided in the same manner as the lest of the estate. But that can only affect the bequest over of the capital of the fund after the death of the annuitant; which can at once be separated from the annuity, if the limitation over is too remote as to such capital of the fund, by taking so much of the testator’s estate merely as will be sufficient to purchase the annuity, upon the principles of valuing life annuities.

It is very evident from the whole will taken together that the testator intended his executrix and executors should receive the rents and profits of the estate, or of so much thereof as should not be sold for the payment of debts &c., previous to the time appointed for the division of the property ; and an interest in those rents and profits is given to the widow and family for their support in the meantime. This would render the trust estate, or so much thereof as was not necessary to be sold to pay debts and legacies, inalienable for a term in gross not determinable upon lives, under the provisions of the 63d section of the article of the revised statutes relative to uses and trusts. (1 R. S. 730.) According to the decision of the court for the correction of errors in the case of James’ will, such an inalienable estate for an absolute term, not determinable at the expiration of not more than two specified lives in being at the death of the testator, cannot be sustained. I consider it conclusively settled, however, by the decisions of the court of dernier resort confirming the decrees of this court in the cases of Gott v. Cook, (7 Paige’s Rep. 521,) and of Van Vechten v. Van Vechten, (8 Idem, 104,) that any legal trust is sufficient to sustain a devise or conveyance to the trustee, of an estate commensurate with such trust ¡ without reference to the illegal trusts which the testator or grantor has attempted to create in the same estate. And since the decision, in December 1839, of the case of Darling v. Rogers & Sagory, (22 Wend. Rep. 483,) the court for the correction of errors has steadily adhered to and acted upon those cardinal and conservative principles, in the construction of devises and conveyances in trust, which were stated and intended to be acted upon by this court in the case of Hawley v. James, (5 Paige’s Rep. 320, 458, 459;) but which the appellate court thought were misapplied here in relation to the trusts of Mr. James’ will. The principles stated in that case, and which are now the settled rules of law, are, that the intention of the testator, when it shall have been ascertained from an examination of the will in connection with the situation of his property, &c. at the time of making such will, must be carried into effect by the courts, so far as that intention is consistent with the rules of law ; that although some of the objects for which a trust is created, or some future interests limited upon the trust estate, are illegal and invalid, if any of the purposes for which the trust was created are legal and valid and would have authorized the creation of such an estate, the legal title vests in the trustees during the continuance of such valid objects of the trust; except in those cases where the legal and valid objects of the trust are so mixed up with those which are illegal and void, that it is impossible to sustain the one without giving effect to the other ■, and that every disposition by the testator of an estate or interest in. the rents, profits, or income of his real or personal property, and every trust in the will which if valid would have the effect of rendering the property inalienable for a longer period than is allowed by law, and every remainder or other future estate or other interest limited upon the trust which would have that effect, must be considered and treated as absolutely void and inoperative, in determining the question of the validity of a devise of the legal estate to trustees or the validity of any other provision of the will.

To apply these principles to the case under consideration : The revised statutes authorize the creation of a trust to sell lands for the benefit of creditors, or to sell, lease, or mortgage them for the benefit of legatees or to satisfy any charge thereon ; but not to mortgage them for the benefit of creditors at large. The power to give mortgages for any other purposes than such as are authorized by the statutes is, therefore, illegal and void. But according to the decision of the court for the correction of errors before referred to, that does not invalidate the trust estate, or any of the other purposes of the trust. Again; the trust to receive the rents and profits and income of the property and to apply a part of the same to the support of Mrs. Eckford and such of the family as chose to continue to live with her, rendered the estate inalienable under the 63d section of the article of the revised statutes relative to uses and trusts. But as that trust was necessarily limited to the life of Mrs. Eckford, even if she should die before the first of February, 1840, the estate or interest she and those of the family who should choose to live with her had in the rents and income of the property could not render the property inalienable beyond one life in being at the death of the testator. And as the interest she and her family had under this clause of the will was wholly disconnected with the subsequent illegal trust, to provide for the surviving members of the family after her death, that trust could not render the estate invalid in the hands of the trustees during her life. This subsequent provision depending on the contingency of her dying before the 1st of February, 1840, and being for an absolute term, not determinable by the expiration of not more than two lives in being at the death of the testator, might possibly suspend the power of alienation for a longer time than was allowed by law. It was, therefore, absolutely void in its creation. (1 R. S. 723, § 14; 726, § 36.) And the validity of the residue of the trust is the same as if this provision for the support of the family after the death of Mrs. Eckford had not been contained in the will.

I can gee nothing, therefore, which can impair the validity of the devise in trust to the executors; which devise in trust would have been divested by the death of Mrs. Eckford, upon the continuance of whose life it depended, if she had died at any time previous to 1840 j the longest period contemplated by the will for the continuance of the trust estate. For when all the legal purposes for which an express trust is created ceases, the estate of the trustees also ceases under the provisions of the revised statutes. (1 R. S. 730, § 67.) The power to partition the estate in 1840, and to sell if the executors should think it best to do so- for the purpose of making such partition, was a mere power in trust which did not require the continuance of the legal estate in the trustees to sustain it. And if the power to sell at the end of an absolute term not depending upon a life or lives in being at the death of the testator would of itself render the estate inalienable until February, 1840, even if Mrs. Eckford should die so as to divest the estate of the trustees before that time, that part of the power would alone be inoperative and void, according to the decision in Darling v. Rogers § Sagory, (22 Wend. Rep. 483,) and could not prevent the execution of the residue of the power authorizing the partition of the property. The statute in terms provides that where an express trust is created which is not authorized by law, no estate shall vest in the trustees ; but the trust, if directing or authorizing the performance of any act which may lawfully be performed under a power shall be valid as a power in trust. (1 R. S. 729, § 58.)

I have no doubt whatever that the testator at the lime of making his will had in contemplation the property in the neighborhood of Love Lane, which his grand daughter then held as real estate under the deed of August, 1826, if she elected to consider that an absolute conveyance when she became of age, as well as the real estate which she then held under the will of her father and which remained unsold, as a part of such real estate inherited from her parents or one of them which was by the terms of the will to be appraised and brought into hotchpot in apportioning the residuary property among the five devisees and legatees. That real estate, as well as her other real estate remaining unsold, was the proceeds of the bounty of the testator to Dr. Drake as his son-in-law. And the statute of 1815, under which a part of her real estate had been sold, and the proceeds of which were afterwards vested in this property under the deed of August, 1826, in terms declared that the proceeds of such a sale should be considered, not only in relation to the statutes of descent and distribution, but for every other purpose, as if the real estate had not been -sold. (Laws of 1815, p. 104, § 5.) The property embraced in that deed was therefore in law real estate inherited from her parents, or one of them, and which was originally received or derived from the testator, within the intent and meaning of this will.

The testator also contemplated an appraisal of the property at its value at the time when the same was to be distributed, at the termination of the trust estate. For at no other time could the appraisal be made of his residuary property, to ascertain its real value as a subject of distribution, so as to produce equality. For while the property -of the testator was charged with an indefinite amount for the support of the widow, and of such children and descendants, including this grandchild, as chose to live with her, it is evident there was no principle upon which the value of this residuary property could be ascertained. For although the value of the life of the widow and the chances of her outliving the duration of the trust term could be ascertained by the life-tables, there was no mode by which the necessary expenses of herself and such of the children and descendants of the testator as might elect to live with her could be ascertained; so that each of the five would, with the property previously received, have an equal share of property, one not more than another, as directed by the will. If the widow had died previous to February, 1840, so as to give to those who had received nothing their shares of the residuary estate at her death before that period, that would be the proper time to make the valuation, so as to produce the equality contemplated in the will. But as she survived beyond that period, so that the trust estate terminated by lapse of time merely on the first of February, 1840, that is the period in reference to which the appraisal must be made of the real estate of the grand-daughter, and the real estate, if any, which Dr. De Kay had received, in connection with the testator’s residuary estate, for the purpose of settling the shares of the several persons entitled to participate in the division.

There may be some difficulty in making the appraisal of the testator’s residuary estate, in February, 1840, as the outstanding claims against his estate have not yet been settled. But I understand the answer of the defendants G. C. De Kay and wife to admit that upon the principle of valuation which I have determined to be the true one, Mrs. De Kay will not be entitled to participate in her grandfather’s bounty any further than she has already received it; by the advances to her father from which her present real estate is derived. If I have mistaken the purport of the answer in this respect, or if there was any advance to Dr. De Kay -which ought to be deducted from his wife’s share, the decree will provide for the appointment of appraisers according to the directions of the will, if the parties cannot agree upon them without the assistance of the court.

The question whether the widow was or was not entitled to dower in the estate appears to be of little consequence, if she died intestate so as to entitle each of her children and her grandchild to participate equally in her estate. But as it is suggested that she made a will, which may be valid, it is proper to dispose of that question at this time. I have examihed the will of H. Eckford in reference to this question and find nothing in it inconsistent with her claim of dower. And the recent decision of this court in the case of Fuller v. Yates, (8 Paige's Ref. 325,) is an authority in favor of her claim as made in the original bill. Indeed, it could not have been the testator’s intention to deprive the widow of dower in his estate, unless he intended to leave her entirely destitute of a support in case her life should be prolonged beyond the 1st of February, 1840. For I find no provision whatever in the will for her support after that time.

If neither of the parties wishes an appraisal, upon the principles above settled, it may not be considered necessary to sell the real estate until the result • of the suits against the executors is known. For if those suits should result favorably to the residuary devisees, it may be for the interest of all parties to have an actual partition of the whole or of a considerable portion of the real estate which may remain. In the meantime a decree may be entered declaring the construction of the will and the rights of the parties under it, and referring it to a master to take and state the account of the executors in relation to the trust fund, and reserving further directions. The costs of all parties thus far, however, ought to be borne by the estate; as the difficulties arising from the will itself have produced this litigation. And the costs of the executors must be taxed as between solicitor and client, so as to cover their reasonable counsel fees which they have been obliged to pay in discharge of their trust; to be settled and allowed by the vice chancellor upon taxation. (See Mohun v. Mohun, 1 Swans. R. 203. Lewin’s Law of Trusts, 456.)

Decree accordingly.


text:
    McLachlan vs. McLachlan and others.
    Where the testator devised a farm and the stock and farming utensils thereon to his son W. for eight years subject to an annual rent of $50, to be paid to the testator’s grandson R., for the use of the farm and the stock thereon, and at the end of the eight years the testator devised the farm to R., upon condition that he settled and resided on the farm, and in case he sold the farm, that the proceeds of such sale should be equally divided among the testator’s lawful heirs; and the testator then gave several legacies to be paid by R. in yearly payments, the first payable at the end of one year after the testator’s decease; and after the death of the testator, W. took possession of the farm and continued in possession during the eight years, and paid the yearly rent of $50 from time to time as it became due to R. until his death ; and R. who died within the eight years had not at the time of his death either taken possession of the farm, otherwise than by receiving such rents, nor paid the legacies; but after his death his father had offered to pay the legacies; Held, that an estate in fee in the farm vested in R. on the decease of the testator, subject to the right of W. to occupy it for eight years at an annual rent of $50 ; and that the condition that R. should settle and reside upon the farm was a condition subsequent, the non-performance of which did not divest the estate previously vested in him. Also held, that the legacies were a personal charge on R. in respect to the estate devised, so far at least as the rents of the premises were insufficient to pay the same, and that having accepted the estate devised, by receiving the rents, he was bound to pay off the legacies; and that this personal charge, independent of the provisions of the revised statutes rendering words of perpetuity in a grant or devise unnecessary, was sufficient to give R. an estate in fee in the premises.
    Where the condition which is to divest an estate becomes impossible, by the act of God, the condition is discharged.
    Where a testator in his will devises lands to a devisee in fee, and then gives several legacies to be paid by such devisee, and the devisee survives the testator and then dies, his personal estate is the primary fund for the payment of such legacies.
    April 5.
    This was a bill for partition. D. McLachlan, the father of the complainant and of the defendant John McLachlan, and the ancestor of the other defendants, died in August, 1829, seized in fee of the premises in question, being a farm of 102 acres in the town of Charlton. By his will he disposed of his real and personal estate as follows : u The farm of one hundred acres in Charlton which is now occupied by my son William, together with the two acre lot adjoining the same, I leave in possession of my son William to be used and oócupied by him for and during the whole term of eight years after my decease, subject to a rent of $50 a year to be paid and applied as hereafter mentioned. And at the end of the said eight years, I give and bequeath the whole farm, together with the two acre lot, to my grandson Robert, son of John and Anna McLachlan, subject to the condition hereafter mentioned ; that is, in case the said Robert shall settle and reside on the farm, but in case he shall at any time alienate or sell it, then the proceeds of this sale to be equally divided among my lawful heirs. To my son John I give $100; to my son Peter $100 ; to my son Daniel, $50 ; to my grandson Peter Carmichael, $50 ; to my granddaughter Jane C., $50 ; to my son William, $100 ; to my son Alexander, $50 ; and to my son James, $50. The above legacies to be paid by my grandson Robert in the manner following : to the first in the order mentioned one year from my decease, and to the second at the end of two years, and so on in yearly payments until the whole is paid. And as to the stock and utensils, with the other articles of personal property now on the farm, I give the use of it to my son William during the eight years he is to occupy the farm ; then he is to leave the same in value on the farm, for the use of my grandson Robert, as is now put into his use. My son William shall also pay to my grandson Robert for the use of the farm and stock during the term of eight years, $50 a year, to be paid at the end of each year.” The testator further directed that William should not dispose of the use of the farm during the eight years to any other than one of his brothers ; and in case he should lease the premises to any other family, Robert the grandson should have the right to come into immediate possession. And he appointed his sons William and James his executors.
    Immediately after the death of the testator the complainant took possession of the two acre lot, and of the personal property mentioned in the will, and continued in possession of the same and of the residue of the farm during

      the whole term of eight years; and paid the yearly rent of $50 therefor to Robert from time to time as it became due, until the death of the latter. Robert the grandson died the latter part of May, 1837, a short time before the expiration of the eight years, intestate and without issue ; leaving his father John McLachlan his heir at law. At the time of the death of Robert he had not paid the legacies, nor taken possession of the premises in question otherwise than by receiving the $50 annually for the use thereof, from time to time, as it became due. But after his death his father and heir offered to pay the legacies, as directed by the testator, if the legatees would admit his title to the farm. This they refused to do; the complainant and others insisting that by the death of Robert before the expiration of the eight years, and before he had taken the actual possession of the farm and resided thereon, the title had vested in the heirs at law of the testator, subject to the right of the complainant to the use of the same during the residue of the eight years according to the terms of the will.
    B. Wright, for the complainant.
    J. Lansing, for the defendant, John McLachlan.

      J. Sternbergh, for the infant defendants.
   The Chancellor.

The principal question in this case is whether the condition annexed to the devise to the testator’s grandson Robert, that he should settle and reside on the farm, was a condition precedent to the vesting of the estate ; or was a condition subsequent, the non-performance of which was to divest an estate to which he was previously entitled under the will. Taking the whole provisions of the will together, I have no doubt that the testator intended to give to his grandson an immediate interest in the farm, and in the personal estate, farming utensils and stock thereon j subject to the interest therein of his son William for the eight years in the nature of a lease for that term reserving an annual rent to the grandson of $50. He in terms calls the annual sum to be paid to Robert, for the use of the farm, a rent. And he undoubtedly intended it should be paid to Robert to enable him with that, and whatever more was necessary for the purpose to be raised by his own exertions, to pay off the legacies ; all of which, except the legacy to James, would become payable at or before the expiration of the leasehold interest of the complainant in the property.

The legacies were a personal charge upon the grandson in respect to the estate devised, so far at least as the rents of the premises were insufficient to pay the same ; and this was sufficient to give him an estate of inheritance in the premises. Having accepted of the estate devised, by the receipt of the rent reserved to him, as it became due and payable, he was bound to pay off the legacies charged upon him personally, although they were more than the amount of the rent. And the testator could not have intended to charge the grandson, who appears to have been the principal object of his bounty, with the payment of $150 out of his own funds during the first three years, and then that his heirs should receive no equivalent therefor in case of his death. Upon the settled principles of law on this subject, even before the revised statutes had rendered words of perpetuity in a grant or devise unnecessary, this must be considered as a devise of an estate of inheritance.

An estate in fee in the farm having vested in the grandson at the death of the testator, subject to the right of William to occupy the farm for eight years at an annual rent of $50 to be paid to such grandson, the estate was not divested by the non-performance of the condition subsequent, that the devisee should settle and reside on the farm, at the end of the eight years or upon the sooner termination of William’s interest therein. For it is a settled rule of law that where the condition which is to divest an estate becomes impossible by the act of God, the condition is discharged. (Covent. Read. Ed. of Coke, 206, (a). Pey ton v. Bury, 2 Peer Wms. 626. Thomas v. Howell, Skin. Rep. 301, 319.) The whole farm, therefore, belongs to the defendant John McLachlan, as the heir at law of his son the devisee ; subject in equity to the payment of the legacies, if the personal estate of the devisee is not sufficient to pay the same.

This bill is not properly framed for the purpose of a decree for the payment of the legacies. It is strictly a bill for partition, although the fact that Robert, the grandson of the testator, died without paying the legacies is incidentally mentioned. Besides, the personal estate of Robert McLachlan is the primary fund to pay those legacies, and his administrator is not before the court. It also appears that he left personal estate. For the complainant states in his bill that the stock, farming utensils and other property, which were to be left on the farm by him at the end of the eight years, are still in his hands. The bill must therefore be dismissed, with costs to such of the defendants as have appeared and answered ; leaving the legatees or their representatives to take such proceedings for the recovery of their legacies as they may think proper, if the personal representative or the heir at law of Robert does not voluntarily pay the same.


text:
    The Farmers’ Loan and Trust Company vs. Seymour and others. Van Buren vs. The Farmers’ Loan and Trust Company and others.
    Where a suit abates by the death of one of sevoral defendants, it is not necessary in a simple bill of revivor, by the complainant, to revive the suit against the representatives of the decedent, to make the surviving defendants parties to such bill. And the same principle is applicable to a supplemental bill in the nature of a bill of revivor, to revive or continue the suit against the devisee or assignee of one of the orignal defendants.
    In a bill of revivor, or a bill in the nature of a bill of revivor, .filed by a person who was not a party to the original suit, all the surviving parties to such original suit who have any interest in the further proceedings to be had therein, must be made parties; either as complainants or as defendants.
    Where a supplemental bill is filed for the mere purpose of bringing a new party before the court upon the original facts before appearing upon the record, it is only necessary to make him a defendant in such bill. But if a supplemental bill is filed for the purpose of bringing new facts before the court, all the other parties in the original bill should be parties to the supplemental bill.
    Defendants in a foreclosure suit who have claims upon the equity of redemption merely, and who have no interests adverse to the claim of the complainant, will not be permitted to delay his proceedings to obtain satisfaction of his mortgage, by a litigation of their claims to the equity of redemption as between themselves.
    To authorize a stay of proceedings in a foreclosure suit, upon the filing of a cross bill by one or more of the defendants in the original suit, the complainants in the cross suit must satisfy the court that such stay of proceedings, until they can litigate their claims against their co-defendants in the original suit, upon such cross bill, is absolutely necessary to the protection of their rights.
    April 5.
    This case came before the court upon the petition of A. & J. Van Burén, two of the defendants in the original suit and the only complainants in the cross bill, to open the order to close the proofs in the first entitled cause, and to stay the proceedings therein till the defendants in the cross bill had answered the same, and for such order in relation to the supplemental bill filed by The Farmers’ Loan and Trust Company as should be just. The original bill in the first entitled cause was filed in 1839, to foreclose a mortgage, executed by Seymour and wife, to the complainants in that cause, conditioned for the payment of $20,000 and interest, the payment of which was also secured by the bond of Seymour and of G. B. Throop, N. Garrow and R Steele, guarantied by the bond of J. Porter and others 3 also another mortgage executed by G. B. Throop and wife to the complainants, conditioned for the payment of $7500 and interest, secured by the bond of the same individuals and guarantied by the same persons as the first mortgage ; also a third mortgage executed by Garrow and wife to the complainants, conditioned for the payment of $15,000 and interest, secured and guarantied by the bonds of the same persons; and a fourth mortgage executed by Steele and wife to the complainants, conditioned for the payment of $17,500 and interest, secured and guarantied by the bonds 0f ^h.e same persons. To this bill the mortgagors, and the makers of the several bonds securing or guaranteeing the payment of the mortgage money, except Porter who had died insolvent and intestate, were made parties. The bill also alleged that A. & J. Van Burén and a great number of other persons and some corporations, as well as the widow and heirs of Porter, had or claimed to have some right or interest in the mortgaged premises, as mortgagees, judgment creditors, or otherwise j and such persons and corporations were also made defendants. Most of the defendants suffered this bill to be taken as confessed. The defendants A. & J. Van Burén, however, put in an answer, admitting in substance the execution of the several bonds and mortgages and the other allegations in the complainants’ bill, but setting up an equitable .claim to one tenth of the mortgaged premises, under an agreement with the associates for whose benefit the mortgaged premises were purchased and held in the names of the several mortgagors, and the payment of their portion of the purchase money except what was still due to J. B. Dill, on account of the purchase from him. And these two defendants in their answer insisted that the amount due on the several mortgages should be raised by the sale of the other nine-tenths of the mortgaged premises, and by a resort to the personal liability of those who had joined in the bonds and guarantied the payment of the moneys loaned by the complainants to the other associates, before selling that tenth thereof which belonged, in equity, to these defendants. They also filed their cross bill setting forth the same facts, and praying similar relief, and also praying for a partition of the mortgaged premises between them and the other associates; in which cross bill the complainants in the original suit and the mortgagors and their wives and the other associates, except Porter and his widow and heirs, and J. B. Dill were made defendants.

      The original cause being in readiness to take testimony therein, as against all the defendants who had not suffered the bill to be taken as confessed, an order to produce proofs was entered by the complainants and served upon the solicitors of the several defendants who had answered, on the 6th of February, 1841. Shortly afterwards the defendant Garrow, who had suffered the original bill to be taken as confessed and had not answered the cross bill, died insolvent and intestate; having before his death, and after the filing of the cross bill against him, conveyed and assigned all his estate real and personal to T. Y. How and J. Seymour, in trust for the payment of his debts. The complainants in the original bill thereupon, under an order of the court obtained for that purpose, filed a bill in the nature of a bill of revivor and supplement, for the purpose of reviving and continuing the proceedings against the assignees of Garrow; to which bill such assignees were made parties defendants. And the complainants in the cross suit filed a similar bill to revive and continue the proceedings in that suit, to which they made the surviving defendants in the cross suit as well as the assignees of Garrow defendants.
    J. Van Burén, for the complainants in the cross suit.

      C. Stevens, for the Farmers Loan and Trust Company.
   The Chancellor.

Two questions are presented for the consideration of the court in this case. First: Whether the complainants in the original suit were regular in reviving the proceedings against the assignees of the decedent Garrow, without making all the surviving defendants in the original suit parties to the bill in the nature of a bill of revivor and supplement. And secondly : Whether the complainants in the cross bill are entitled to an order to stay the proceedings in the foreclosure suit until all the defendants in the cross suit and in the bill filed to revive and continue the proceedings in that suit against the assignees of Garrow, have answered 3 so that both causes may be heard and decided at the same time.

Upon the question of proper parties to a bill to revive or continue the proceedings, upon the death or change of parties to an original bill in this court, there seems to be some conflict of opinion among practitioners. I have therefore thought it necessary to examine the subject fully, for the purpose of ascertaining the true rule on the subject.

Where the abatement of a suit is caused by the death of one of several defendants, and the suit is revived by the complainant in the original suit, it appears to be only necessary, in a simple bill of revivor, to bring the representatives of the decedent before the court; without making the surviving defendants parties to such bill. (3 Dan. Ch. Pr. 211. Lube’s Eq. Pl. 144. 11 Ves. Rep. 308. 1 Eq. Ca. Abr. 4, pl. 3.) So in the case of the death of one of several complainants, if the survivors are in a situation to entitle them to revive and continue the suit against his representatives, by making them defendants in a bill of revivor, Smith says it is not usual to make the other defendants parties to such bill. (1 Smith’s Prac. 394.) In this last case, however, Daniel appears to suppose that the original defendants in the suit, as well as the representatives of one of the complainants as to whom the suit has abated, should be parties to the bill of revivor filed by the surviving complainants. (See 3 Dan. Ch. Pr. 211.) Without stopping to inquire which is right in the particular case supposed, it appears to be perfectly well settled that when a bill of revivor or a bill in the nature of a bill of revivor is filed by any one who was not a party to the original suit, either as the representative of a deceased party, or otherwise, all the other parties to such original suit who have any interest in the further proceedings therein should be made parties to such bill, either as complainants or defendants. (Fallowes v. Williams, 11 Ves. Rep. 306. Heines v. Day and another, Cary’s Rep. 78. 3 Dan. Ch. Pr. 210. Lube’s Eq. Pl. 144.)

The same rule which applies to a simple bill of revivor against the representatives of one of several defendants, appears to hold in the case of a supplemental bill in the nature of a bill of revivor, to bring the devisee or assignee of the original defendants before the court. In Jones v. Jones, (3 Atk. Rep. 217,) where the objection was made that the complainant in such a bill had not made the defendants in the original bill parties, Lord Hardwick held that it was not necessary to make them parties, and that those defendants could not, upon the hearing, object for want of parties. And in the very recent case of Clough v. Bond, decided by the vice chancellor of England on the 15th of December last, (6 Bond. Jur. Rep. 49,) where a supplemental bill was filed to bring the representative of a deceased party before the court, and it was objected that the other defendants were not made parties to such supple-mental bill, his honor said, “ If a supplemental bill be only for the purpose of bringing a party before the court upon a given case, it is sufficient to make that individual alone a party, without making the other defendants parties thereto ; but if the supplemental bill be filed to bring new facts before the court, then the old defendants to the record must also be made parties to the supplemental bill.” And that in the case then under consideration, the new defendant who was brought before the court by the supplemental bill was made a party in respect to the antecedent facts upon the record against T. R. Dixon whose representative she was. (See also Bignall v. Atkins, Mad. § Geld. Rep. 369; Ensworth v. Lambert, 4 John. Ch. Rep. 605; and Greenwood v. Atkinson, 5 Sim. Rep. 419.)

In the case now under consideration, this supplemental bill in the nature of a bill of revivor is filed for the sole purpose of reviving and continuing the proceedings in the original suit which had become abated by the death of the defendant Garrow, against his assignees who had become such pendente lite, and for the purpose of having a decree of foreclosure and sale of the mortgaged premises upon the case made upon the original bill merely, and not upon any new facts brought before the court by this supplemental bill in the nature of a bill of revivor. I am not able therefore to distinguish it from the case of Jones v. Jones, decided by Lord Hardwick in 1745, to which I have before referred. Were this a new question, I confess I should be inclined to decide that in a bill of revivor, or a bill in the nature of a bill of revivor, to bring the heirs or devisees, or the grantees pendente lite of a deceased defendant before the court, all the surviving defendants in the original suit who had an interest in having the proper representative of the decedent before the court upon the hearing and decision of the cause, should be made parties to such bill; so as to give them an opportunity to object by plea or answer, if necessary, that the person attempted to be brought be-for the court as the representative of the deceased defendant was not in fact such representative, and had not succeeded to his rights in the subject matter of the litigation. And if the wrong person is brought before the court as the representative of the original interest of the decedent, some way must still be provided by which the surviving defendants who have an interest in that question may have the mistake corrected. But considering the great expense and delay it might cause to suitors in this court, to require that, upon every change of the interest of a defendant, by death, bankruptcy, or otherwise, by which the suit becomes abated or defective as to him, all the other defendants should be made parties to the bill to revive or continue the proceedings against the person who had succeeded to his rights, I do not feel authorized to change the rule of pleading which I find to exist on this subject.

Upon the present application there is no ground for the interference of the court on the subject; as it appears by the bill which the applicants have themselves filed to revive and continue their proceedings in the cross suit, that the complainants in the original suit have revived that suit against those to whom Harrow assigned all his interest in the mortgaged premises a short time before his death. And if, as has been subsequently suggested, Harrow had in fact assigned all his interest in the mortgaged premises before the commencement of this suit, to one of the other defendants therein, the rights of that defendant will be protected at the hearing in the same manner as they would have been if Garrow was still alive. For the new parties brought before the court as having succeeded to his rights, sit in the seat of the assignor as to his interest in the premises. The order entered by the complainants in the original suit to close the proofs was therefore regular ; and as an arrangement has been made between them and the complainants in the cross suit, to save the interference of the court in the case, in granting the application as a mere favor, the motion to open or vacate that order is denied.

The object of the cross bill, so far as the complainants in the original bill are concerned, is to delay the mortgagees in the collection of their debts until the equitable claims between the complainants in the cross bill and some of the other defendants in the original suit can be ascertained and settled by a litigation between themselves. By the former practice of this court the complainant in a foreclosure suit, although there was no question as to his lien upon the mortgaged premises and his right to a foreclosure and sale thereof for the payment of his debt, could not obtain a decree of sale until the conflicting claims of the other parties to the suit, upon the equity of redemption, were adjusted and settled, (Renwick v. Macomb & Pell, Hopk. Rep. 277.) The result of such a practice generally was that the mortgagee was greatly delayed in the collection of his debt, by a useless litigation between the defendants in relation to surplus moneys which might be produced upon a sale of the mortgaged premises, before it was ascertained whether there would be any thing raised upon such sale, beyond the amount of the complainants’ debt and costs. The 132d and 136th rules of the court, which were adopted 1st of January, 1830, were intended to change the practice in this particular. Since which time defendants whose claims are upon the equity of redemption merely, and who have no interest in the mortgaged premises adverse to the complainants’ claim, are not permitted to delay his proceedings by a litigation of their claims to the equity of redemption with their co-defendants. (The Union Insurance Company v. Van Rensselaer, (4 Paige’s Rep. 85.) To authorize the court to interfere in such a case to stay the proceedings of the mortgagee, either upon the filing of a cross bill by one or more of the defendants in the foreclosure suit or otherwise, such defendants must be able to satisfy the court that a stay of the proceedings, until they can litigate their claims as between them and their co-defendants, is absolutely necessary to the protection of their rights.

In the case under consideration, I see nothing to take it out of the general rule on the subject. The defendants A, & J. Van Burén do not deny that the legal titles to the mortgaged premises were in the respective mortgagors at the time of the giving of the several bonds and mortgages set forth in the bill of foreclosure. Nor is it alleged that the mortgagees, at the time they took these securities and loaned the moneys upon the faith of the same, had any notice of the supposed equities upon which the cross bill is founded; if the complainants in that bill have in fact any equitable interest in the mortgaged premises as real estate under the provisions of the revised statutes relative to uses and trusts. In the present state of the proceedings, and without hearing the counsel of all the parties who may be interested in the decision of the question, it may not be proper to express any opinion, whether the associates other than those in whom the legal title was vested took an estate or interest in the land itself, or only an interest in the moneys arising from a sale thereof, under the several contracts and agreements of 1835, set forth in the cross bill. Whatever may be the equities of the original associates, or those who have succeeded to their rights, as between themselves, I do not see that any positive injustice can be done to either of them by permitting the mortgagees to proceed and obtain the usual decree of foreclosure and sale; leaving the surplus proceeds of such sale, if any, to be distributed among the defendants according to their equitable rights or interests therein, upon an ordinary reference under the 136th rule. Or if the bill filed by some of the defendants, called a cross bill, is in the proper form to enable the court to settle the claims to the surplus moneys as well as the personal claims of the original associates, or of those who have succeeded to their rights, between themselves according to equity, the proper decree may be made upon that bill when it is in readiness for hearing.

The motion to stay the proceedings in the original suit, so that such suit and the suit upon the cross bill may be heard together, must therefore be denied with costs. But upon the hearing of the foreclosure suit any of the parties who have appeared therein are to be at liberty to ask for such provisions to be inserted in the decree, not inconsistent with the rights of the mortgagees, as may be deemed necessary to protect the rights of the defendants, as between themselves, in any subsequent litigation relative thereto.