text:
    Child vs. Brace and others.
    To a bill filed by a judgment creditor to obtain satisfaction of his debt after the return of an execution unsatisfied, all the defendants or persons against whom the judgment was rendered should be made parties.
    Before a judgment creditor is authorized to file such a bill, he must make a bona fide attempt to collect his debt by execution against the defendant. And where the judgment is against several persons, he must exhaust his remedy, by execution against all, before he can apply to the court of chancery for relief; unless it appears that the persons against whose property the remedy at law is not exhausted, stand in the situation of sureties, and that the bill is filed with their assent, and for their benefit
    Where the judgment debtor has a fixed and known place of residence within the state, at the time of issuing the execution against him, and has visible property in the county in which he resides sufficient to satisfy the execution, and which may be reached byit, and the judgment is in the supreme court, so that an execution may be issued to that county, it will be a good defence to the complainant's bill, that he has neglected to issue an execution to that county.
    The complainant in this cause was a judgment creditor of H. Brace, T„ Joy, R. Hunter, N. Brown and T. J. Shankland, who were copartners in the forwarding commission business upon the Erie canal. The judgment was entered in the supreme court, in September, 1828, at which time one of the partners resided at Rochester, in Monroe county, one at Albany, and another at New-York. Brown, another of the partners, resided in the county of Montgomery; where he had a large real and personal estate. The partners carried on their business principally at Rochester and Albany, and on the canal between those two places. The venue was laid in the county of Monroe; and a fi. fa. was issued to that county, which was returned unsatisfied. The bill, in the present suit, was filed against H. Brace, one of the defendants in the judgment, and against F. Wilkie and Clark and Walker, to reach certain property in the hands of the latter, which had been assigned to them by Wilkie, in trust, among other things, to pay a debt due from him to Brace. Several questions were raised by the pleadings and proofs; but the vice chancellor of the eighth circuit, before whom the cause was heard, dismissed the bill, with costs, on the single ground that the complainant had not exhausted his remedy at'law on his j udgment. From this decree of the vice chancellor, dismissing the bill, the complainant appealed to the chancellor.

      January 28

      The following opinion was delivered by the Vice Chancellor bn dismissing the bill:
    Gardiner, V. C. Assuming that the complainant is a bona fide judgment creditor, and that a large balance is now due to him upon his judgment, the only question necessary to be discussed in the present case will be, Has he entitled himself to the relief sought by the bill 1 In Beck v. Burdett, (1 Paige’s Rep. 308,) the chancellor remarks, that there are two classes of cases where a plaintiff is allowed to come into this court for relief. In the one the issuing of the execution gives the plaintiff a lien upon the property, but he is compelled to come here for the purpose of removing some obstruction, fraudulently or inequitably interposed to prevent a sale upon the execution. In the other to obtain satisfaction Of his debt out of property of the defendant which cannot be reached by execution at law. The present is not a case of the first .class. The claim of Brace against Wilkie was a chose in action, upon which the execution of the complainant never was a lien, and from which the execution could not have been satisfied, even if the assignment was set aside. The whole frame of the bill distinctly characterises this as one falling within the second class Of cases mentioned by the chancellor. In the language of the case cited, the right of the complainant to relief here depends upon the fact of his having exhausted his legal remedies without having obtained satisfaction of his judgment. Has the complainant placed himself in this situation 1 That he has not in fact exhausted his legal remedy is apparent. From 8 to 12000 dollars value of the real estate of Brown in the county where he resides is now bound by this judgment; and this, together with three thousand dollars of personal property, is now subject to execution. It was, however, argued by the counsel for the complainant, that the language of the case cited was to be received with some modification; that legal diligence was all that could be required of the complainant, and this requirement Was satisfied by the issuing of an execution into the county where the venue was laid, and the .return of .that execution unsatisfied. The position to this extent is believed to be altogether untenable. It is notorious that in transitory actions, more especially in that class of them where no valid defence is apprehended, the venue is regulated by the convenience of the plaintiff, and the facilities afforded for a speedy trial,.without any regard to the residence of the defendant, or the situation of his property. A creditor in New-York, as against his debtor residing in a distant county, would naturally fix the place of trial in his own county. Should a judgment be obtained, execution issued to the sheriff of New-York, and duly returned unsatisfied, would these facts furnish evidence that the debtor had no property subject to execution 1 that the legal remedy was exhausted 1 And should we add to the supposed case the farther circumstance, that the goods for which the debt was incurred, and the whole business transaction between the parties occurred in the city of New-York, would this in the slightest degree add to the force of that evidence 1 I apprehend that it would not, for the obvious reason that in ordinary cases, a man’s property is to be found where he is domiciled, and not elsewhere; and such is the presumption of law. On the position assumed, however, the court is called upon to infer, against common experience and legal presumption, that a debtor has no property tangible on execution at home, because it is not found in a remote county; and this would, in fact, subject every debtor to an expensive chancery litigation, who should fail to provide property, where his creditor should select his place of trial. It was said that a contrary rule would require an execution to be issued to every county. If I am correct in the view I have taken, this objection is already obviated. The debtor is presumed to have property, where his residence is fixed. An execution issued to, and duly returned by the sheriff of that county, would be prima facie evidence to this court that the legal remedy was exhausted. So are the cases. In all of them it is expressly alleged, or necessarily to be inferred, that the executions were directed to the county where the defendants resided.

      The true rule deducible from the decision, I apprehend to be this: that when the judgment is obtained in a court of general jurisdiction, the complainant, prima facie, to entitle himself to relief here,'must show an execution issued to, and duly returned by the sheriff of the county where the defendant is domiciled; or, in case the execution is issued to another county, the complainant must, by distinct averments, and by proof, if necessary, repel the legal presumption of property in the county where the defendant has a fixed residence. To apply this to the present case, the complainant’s judgment was obtained against five defendants, one only of whom, Robert Hunter, resides in Monroe county. Brace, the defendant in this suit, and Joy, reside in Albany, Shankland in New-York, and Brown in Montgomery. To the three last counties no executions whatever have been issued. Their business, and their transactions, as a company forwarding property, extended from New-York to Erie; and they had distinct establishments,under different names, at Rochester, Albany and New-York. It is apparent that the complainant has not brought himself within the first branch of the rule above suggested. Nor can it be pretended, in any view, that his legal remedy is exhausted. To determine this, we must infer that, because the complainant has levied six thousand dollars in two counties, where there was one establishment and one defendant, that therefore nothing could be reached on execution issued to three other counties, where there are two business establishments and four defendants.
    There are no averments in the bill to bring this cause within the second provision of the above rule. The bill alleges that the company is insolvent, and that Bhanlcland has been discharged under the insolvent act; but there is no averment that either Brace, Joy or Brown are insolvent, much less that they have no property which might be reached by execution. Insolvency, at least, must be averred and proved; it is not to be presumed. The reverse is to be inferred from the bill itself, and is established beyond controversy by the proof. The bill, however, does allege that the complainant did not know of any property out of which the execution could be satisfied. The answer is entirely silent upon that subject, and hence it is argued that the defendant is concluded. The averment, if material in any point df view, is not that there was no property, but that Child knew of none. The former, however, is the fact to be established, to entitle the complainant to equitable relief; not the latter. Indeed, the very gist of the objection is, that the complainant did. not take legal measures, by issuing his executions to the proper counties, to ascertain whether there was property or not. My opinion, therefore, is, that under the circumstances of this case, the complainant is not entitled to the relief sought by the bill. I have chosen to rest my decision upon the single point discussed, because I consider it of the greatest importance, whether viewed in reference to this court, or to parties generally. The necessity contemplated by the decisions upon the subject should exist and be established, before resort is had to this court. Sound policy requires this. At law, the remedy is cheap and expeditious. Here it must always be expensive, and frequently dilatory. It needs but a glance at the papers necessarily accumulated in this cause, and which might be equally necessary in one of $100 consequence, to satisfy us, that the only way to guard this court from an influx of business that will be overwhelming, and to save debtors from an expense equally destructive to their interest and the interest of their creditors, is strictly to adhere to the wholesome rule that before relief can be had here, the remedy at law must be, not in name only, but in fact exhausted. The bill must be dismissed with costs.

      B. F. Butler 8. Ford, for the complainant.
    The bill Was filed against the defendant Brace as the assignee of his copartners. We claim the fund in Brace’s hands. It was not necessary to make the cestui que trusts parties. The business of the partnership was principally earned on in Monroe county; and the venue was laid in that county. It was sufficient to issue the execution to that county. It was not necessary to aver that there was no property in the counties where the defendants resided. The statute speaks of only one execution. (Spader v. Davis, 5 John. Ch. 280, S. C. 20
      John. Rep. 554. McDermutt v. Strong, 4 John. Ch. 691. Brinckerhoff v. Brown, Id. 675. Williams v. Brown, Id. 684. Candler v. Petit, 1 Paige’s Ch. Rep. 428. Id. 168. Eager v. Price, 2 Id. 334.) A creditor of one of several partners may file his bill to reach his share of the. surplus, after payment of the partnership debts. It was not necessary to issue an execution against all the partners to every county in which they resided. A defendant cannot set up a defence on the hearing not embraced in the pleadings. (James v. McKernon, 6 John. Rep. 543. Underhill v. Van Cortland, 2 John. Ch. 353.) The objection of the want of parties is not taken in the answer, and was not raised before the vice chancellor. The partners of Brace were not necessary parties; they may have been proper parties. The complainant could at law have collected the whole judgment out of the private- property of Brace.

      M. T. Reynolds, for defendants.
    All the defendants in the judgment should have been made parties. It is not too late to take this objection at the hearing. The partners of Brace are necessary parties. The complainant, ought to have exhausted his remedy at law before filing his bill, by issuing executions to the counties where the partners carried on their business, and where they resided. (Brinckerhoff v. Brown, 4 John. Ch. 671. Hadden v. Spader, 20 John. Rep. 565. Beck v. Burdett, 1 Paige’s Ch. 308.) This bill was filed before the revised statutes went into effect. At that time the bill could only have been filed upon the ground of fraud in the debtor. (Donovan v. Finn, 1 Hopk. 59.)
   The Chancellor.

The objection that the co-defendants in the judgment with Brace were not made parties to this suit, would probably have been valid, if it had been made at the proper time. But as it was neither raised by demurrer, nor insisted upon in the answer of the defendants, it afforded no sufficient ground for dismissing the complainant’s bill at the hearing. The only effect of such an objection at that time would have been, to have an order that the cause stand over; with liberty to the complainant to file a supplemental bill, for the purpose of bringing the necessary parties before the court. That objection cannot, therefore, be now urged in support of a decree dismissing the bill of the complainant.

Upon the facts, as detailed in the pleadings and proofs, I am inclined to think that the complainant was not entitled to hold the trust property, which was purchased in on his account, at the prices at which the same was bid in at auction. But that he was bound to allow the defendants, on the judgment, the actual cash value of that part of the property at the time of the sale. The principle that a trustee for the sale cannot be permitted to make a speculation by purchasing in the trust property for himself, has been so frequently recognized in this court, that it would be a useless waste of time to cite cases on the subject. And I see nothing in the circumstances of the trust, created by the assignment to this complainant, to take it out of the operation of the general rule. s

The ground upon which the vice chancellor placed his decision, however, was sufficient to dispose of this case. It appears, by the testimony, that N. Brown, one of the defendants in the judgment, resides in the county of Montgomery, and has a large real estate there, on which the judgment was a lien. That fact also must have been known to the complainant ; for he had taken a mortgage on a part of that property. Although it is alleged in the bill that the complainant was not aware of any property belonging to the defendants in the judgment, upon which an execution could be levied, that allegation, if it was intended as an averment that Brown had no tangible property at the place of his residence, is disproved by the testimony of Brown. The statute is general, that whenever an execution against the property of a defendant shall have been issued, on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery, &c. (2 R. S. 173, § 38.) It must be recollected, however, that this statute is only declaratory of a principle which had before been adopted in this court. It means, therefore, that the plaintiff in the judgment shall have made a bona fide attempt to collect his debt, by execution against the property of the defendant. If the plaintiff is not aware of the existence of any tangible property of the defendant, it may be sufficient to issue the execution to the county in which the defendant resides, or where he was residing at the time of the commencement of the original suit against him. And if he has, in fact, no property which is subject to execution, perhaps it may be sufficient to issue the execution to the county where the venue was laid, as was done in this case. But where the judgment is in the supreme court., so that the execution may issue to any part of the .state, if the defendant has a fixed and known place of residence at the time the execution is issued, and has visible property in the county where he resides sufficient to satisfy the debt, it will be a good answer to the complainant’s bill, that he has neglected to issue an execution to that county. And where there are several defendants in the judgment, who are jointly holden for the payment of the plaintiff’s debt, he should exhaust his legal remedy, by executions against the property of all, before he applies to this court for relief; except, perhaps, where one of the defendants is a mere surety. But even in that case the fact of suretyship, and an averment that the suit here was instituted for the benefit of the surety, and with his assent, should be stated in the complainant’s bill. As the judgment creditor may take out several executions at the same time, the fact that the defendants reside and have property in different counties, need not delay him in the commencement of proceedings here. The fact of the residence of Brown in the county of Montgomery, and that he had lands there which were subject to the lien of the judgment, appeared upon the face of the complainant’s bill. It was not necessary, therefore, for the defendants to set up those facts by way of defence in their answer.

The decree of the vice chancellor must be affirmed, with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    E. A. Vail and wife v. H. Vail and others.
    Where the testator died possessed of a large real and personal estate, leaving-a widow and six children, some of whom were minors, and by his will, after giving various pecuniary legacies to his widow and children and others, directed his executors to provide for the support and education of his minor children, out of the income of his real and personal estate, until they arrived at the age of twenty-one or married; and also directed his executors to invest the residue of his personal estate in real property, or in bonds and mortgages, or other permanent securities, until the death of tho widow, and until the youngest child arrived at the age of twenty-five, and then to sell the real estate so purchased, together with that of which the testator died seized, and to divide all that then remained of the estate among the six children, or their issue, and to invest the share of each child in the name of the executors, and to pay over the income theraof to the children respectively for life ; and that upon the death of the children, their several shares should go to their issue, and if any child died without issue, the share of such child should go to the other children or their issue ; Held, that the executors took an estate for years in the real property of the testator, by implication, to enable them to receive the rents and profits thereof, for the support and education of the minor children, until the youngest arrived at the age of twenty-one or married; but that there was a resulting trust, in favor of the heirs at law of the testator, for so much of the rents and profits as were not wanted for that purpose; and that the reversion in the real estate, after the expiration of that term, descended to the heirs at law, subject to the power in trust to the executors to sell after the death of the widow and after the youngest child arrived at the age of twenty-five ; Held also, that there was an implied trust of accumulation of the interest or income of the personal estate, by the executors, until the time appointed for the division of the property among the children, which trust of accumulation was void under the provisions of the revised statutes ; and that such interest or income belonged to the widow and children of the testator, as property not legally disposed of by his will.
    Where a testator bequeaths to his children a contingent interest for life, in the income which may accrue from a residuary fund, after the happening of a particular event, they are not entitled, under the will, to the income of the fund previous to that time ; and no valid bequest being made of such previous income, it must be distributed as in cases of intestacy.
    The bill in this cause was filed to obtain the decision and direction of the court as to the construction of certain parts of the will of Laurent Salles, deceased. The testator died in 1833, leaving property of the value of about twelve hundred thousand dollars, one hundred thousand of which was in real estate, and the residue was in' stocks, bonds and mortgages and other personal property. The testator left a widow, about 47 years of age, and six children, the eldest of which was 26 years of age and the youngest fourteen. By his will, which was made after the revised statutes went into operation,. the testator bequeathed about $ 15,000, in legacies, to some distant relatives and friends and to charitable objects. He then ■directed $25,000 of his personal estate, to be invested for the use of his wife during her life or widowhood, with liberty to her, if she died his widow, to dispose of the same by will among his children or grand children; and if she died without mating such disposition, then that the principal, upon her death, should sink into the general residue of his estate. He also directed $10,000 to be invested for the use of his daughter, Mrs. Tonnele, for life, with remainder to her two children, or the survivor of them; and if they both died in the life time of their mother, then to such persons as she,might by will appoint, or in default of such appointment, that the principal sum should sink into the general residue. The testator also ordered the executors, from the income of his estate, either real or personal, to pay and appropriate such sums as might be necessary for the support and education of his minor children, until they should respectively arrive at the age of twenty-one or be married. He also gave to each of his five daughters, a legacy of $25,000; the legacies to the married daughters to be paid immediately, and those to the other three to be paid at the age of twenty-one, or sooner, if they married with the consent of the executors. He also gave to each daughter, a similar legacy of $25,000, payable when they should respectively attain the age of 25 years. These several legacies were to be paid to the issue of such of the daughters as should die before the same became payable, provided they had any issue living at the time when such payment was to be made; and if they had no such issue, the legacy was to fall into the general residue. The testator also gave to his son three legaeies, of $25,000 each, the first payable when he was twenty-one, the second when he was twenty-five, and the third when he was twenty-seven. The executors were directed to invest the whole of the personal estate of the testator, except so much thereof as might be necessary to fulfil the requisitions of the will, in the name of the executors, for the use and benefit of the testator’s children, in the purchase of real estate, or in bonds and mortgages, or in certain other permanent securities specified in the will. And when the youngest child arrived at the age of twenty-five, or as soon thereafter as the widow should die, and not before, the executors were directed to sell all the real estate of which the testator died seized, and also that which should have been purchased by them, and then to divide all that remained of his estate among the six children and their issue, in' such proportions as to equalize, with interest, the previous advances which should have been made by the executors, as directed in the will; so as to give to each child an equal benefit from his estate. This distribution, however, was to be made without reference to the legacy of $10,000 td Mrs. Tonnele and her children, or to any disposition which the widow might make of the principal of the $25,000 legacy to her. The testator further directed that the several shares so apportioned should be invested in the name of the executors, as trustees for his children respectively, and that the income should be paid to the children for life. And he directed that the portion of each child, after his or her death, should go to the issue of such child, if any there was, and if none, then to be divided among the surviving children and the issue of such as had died, per stirpes; or in such other manner as the child dying without issue might by will direct.

      January 28.

      By the bill of the complainants, it was claimed that each of the children was entitled to one sixth of the rents and profits of the real estate of which the testator died seized, subject to their mother’s right of dower therein; and to one sixth of the income of the residue of the testator’s personal estate, after satisfying the several legacies. The answer of the defendants admitted all the material facts stated in the bill, and particularly that the complainants, in behalf of Mrs. Vail, who was one of the children of the testator, claimed one sixth of the income of the real estate and of the general residue of the personal estate, and had applied to the executors for the payment of such share. But the defendants stated, in their answer, that being advised that the legality of that claim was doubtful, and that they could not safely admit the same, of pay over such income without the direction of the court, they had declined to comply with the complainants’ request. They therefore submitted the several questions arising under the will, to the decision and direction of the court, as matters of law ; and submitted to abide such order and decree as might be made in the premises.

      G. Clark fy David B. Ogden, for the complainants.
    We contend, 1. That there is by the will no disposition of the rents and profits of the testator’s estate, from his decease until the youngest child attains twenty-five years and the decease of the widow, and that they of course go to the heirs, as so much estate undisposed of; and 2. That if there is any direction in the will that the rents and profits shall accumulate, such direction, so far as it relates to the complainant Julia Vail, is invalid and void, by the statute.
    As to the real estate: The will makes no disposition of the real estate, nor of the rents and profits thereof, until the period when the youngest child shall have attained twenty-five years, and until the decease of the testator’s wife. It is a well settled rule of law, that a freehold estate cannot be in abeyance by the act of a party. (1 Com. Dig. 181, tit. Abeyance. 1 Preston on Estates, 216.) If not devised, or not properly devised, it descends to the heir. (Powell on Devises, 412. Cases temp. Talbot, 44.) A devise that executors shall sell, does not amount to a disposition. (4 Com. Dig. tit. Estates by Devise, N. 2. Powell on Devises, 221.) And in. such case, the lands descend to the heir till sale, and he shall have the rents and profits. (4 Bac. Abr. 281. Noy’s Max. 160. Co. Litt. 236, note.) It cannot be urged, in this case, that there is a devise of the real estate by implication. Implication in a wifi cannot prevail, unless necessary. ( 5 Ves. 801.) And conjecture must not be mistaken for implication; necessary implication does not mean natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed. (1 Ves. & Beam. 486.) And the implication must be plain, and not merely a possible or probable one; for the title of the heir at law being plain and obvious, no words in a will ought to be construed in such a manner as to defeat it, if they can have any other signification. ( 1 Ves. jun. 561. 1 Swinburne on Wills, 353. Id. 146, note, Powell & Weeks’ edition. 6 Cruise, 159.) It is very doubtful whether, under our statute, there can in any case be a devise for accumulation by mere implication. The statute contemplates an express direction. ( 1 R. S. 726.) There is no way to exclude an heir, but by giving to some one else; for he will take what is not disposed of, even against the intention. ( 2. Ves. 225.) Neither an heir nor next of kin can be barred by any thing but a disposition". (3 Ves. 493.) Plain words of gift, or necessary implication are re- * quired to exclude an heir at law. (3 Ves. 92. 1 Ball & Beatty, 541.) And a legacy to an heir at law is not sufficient to defeat his claim to the undisposed real estate. (1 Ball & Beatty, 543.) Even if the power given to the executors to sell the real estate at a future period, could be construed into a devise to them in trust, yet, unless they were also expressly empowered to receive the rents and profits, the devise would vest no estate in the trustees; and the land would descend to the heirs, subject to the execution of the power to the executors to sell. (1 R. S. 729, § 56. 2 Powell on Devises, 32 and 33, ed. of 1827.) When an express trust is created, every estate and interest not embraced in the trust and not otherwise disposed of, shall revert to, or remain in the person creating the trust, or his heirs, as a legal estate. (1 R. S. 729, § 62.) In this case, the testator has created an express trust in his executors to invest his personal estate in a certain mode, and at a specified time to sell the whole estate, and allot the proceeds among his six children. If the executors should sue the tenants for the rent, they could not recover, not being entitled to" the reversion. (3 Bac. Abr. 62.) Whenever there is a devise upon a future contingency, and no intermediate disposition of the rents and profits, there is a resulting trust to the heir. (3 Ves. 725. 1 Ves. jun. 44. 11 Ves. 87. 18 Id. 368. Fearne, 434, Powell’s edition.) When, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for' accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate. (1 R. S. 726, § 40.) Whether regard is had, therefore, to the rules of the common .law, or to the provision of our own statute, the rents and profits in this case must go to the heirs at law.
    As to the personal estate. The testator has directed his executors to invest all his personal property in certain specified securitiés, for the use and benefit of his children ; and has given no other -directions whatever, as to the disposition of the income of his personal estate, until the period of final allotment. This clause gives the children a vested interest in the personal estate, (1 R. S. 728, § 49,) and a right to the income thereof, unless there is a valid direction in the will that such income shall accumulate during the period mentioned. It ' will be conceded that there is no express direction in the will that the income shall accumulate. The words used by the testator, “ for the use and benefit of my children,” imply an imtoe- ' diate use, and not a future use at a very remote period. The testator, by giving to each of his children a legacy of $50,000, showed he was-not afraid to entrust them with a larger income. ' It is a well settled rule of law, that in the construction of wills, the testator is to be presumed to have been acquainted with the _ rules of law operating upon the subject matter. (2 Meriv. 22.) The revised statutes make void all directions for accumulation, except for the benefit of minor children, and during their minority. It will be' perceived, on examining the will, that the testator intended to leave as little as possible to the discretion of his executors. Did he then intend that the rents and profits of his whole estate, amounting to $60,000 a year, should accumulate for 30 years in the hands of his executors, and yet give no directions whatever as to the mode of investing'those rents and profits 1 If it was intended that the estate should'accumulate,-why did the testator appoint guardians for his minor children 1 The testator has directed that when his youngest child shall have attained twenty-five years, and after his wife’s decease, his executors shall sell and allot all that shall then remain of his estate. It appears to us feat the very expression here used, “ all that shall then remain,” implies that something will have been taken therefrom, and if he had' intended that his estate should accumulate, he would have used this expression: “ all my estate and the accumulation thereof.” This is the common and natural mode of expression in such cases; but in no part of his will has he used the word accumulation, orany expression of similar import. We also insist that the testator has made provision for the education and maintenance of his minor children, out of the income of his estate generally, and that he would not have, done this, had he intended that they or their guardians should receive their proportions of the income during their minority. It was a very common practice in England, many years ago, for persons of large estates, to tie them up by long limitations, and by directions for accumulations for almost indefinite periods. The inconvenience and injustice of such a practice was felt and acknowledged, but no steps were taken to prevent it, until the case of Mr. Thelusson’s will (which was made in 1796) was brought before the house of lords on appeal, in the year 1805. (4 Ves.) It gave rise to the English statute of 39 and 40, Geo. 3, commonly called the Thelusson act, which prevents accumulations, except for a definite period. This act allows accumulation during the minority of any person living at the testator’s death, or then in ventre sa mere, and therefore might be during the minority of a stranger, as well as that of a person to whom the estate is limited. (2 Preston on Abstracts, 180.) But our statute limits it to the minority of the person for whose benefit it is intended, and it makes void all directions for the accumulation of the profits, either of real or personal estates, except for the benefit of minor children, and limits it to the period of their minority. (1 R. S. 726, § 37. Id. 773. § 3.) In this case, the testator directs his executors to invest all his personal estate in certain specified securities, for the use and benefit of his children generally, and thereby gives to each of them a vested interest therein. (1 R. S. 728, § 49.) They are consequently entitled each to an equal share in the profits, unless the testator has otherwise disposed of those profits. The evident meaning of the statute is, that the estate of the minors only, shall accumulate; and this is the construction which is put upoo that part of the English statute which corresponds with ours. The right to accumulate during the minority is founded on the idea that if the minor had the beneficial ownership, the income, except so far as was necessary for maintenance, would accumulate during the minority, by the rules of common law; so that no" more is done by the party under the power, given by the statute, for accumulations, than would be done under the rules of law, if such power had not been given. (Preston on Abstracts, 180.) In whatever light, therefore, this case may be viewed, whether with reference to the probable intentions of the testator, the rules of the common law, or the provisions of the statute, there cannot, we apprehend, bean accumulation of the rents and profits; and they must consequently go to the heirs at law.

      P. A. Jay, for the defendants.
    Two questions are presented in this case: what the testator intended, and how far his intentions are controlled by the statute.
    The personal estate of the testator is by law vested in the executors, and the complainants can claim no part of it from them, unless by virtue of the will. If there be any part which he has not disposed of by the will, it either belongs to his executors for tbeir own use, or they will hold it in trust for his widow and next of kin.
    The testator has not expressly given the interest or income of his residuary estate to any one. The bequest is residuary, and is not vested. For if either of the children dies before the period appointed for the partition, the portion of which he would have taken, if living, is not to go to his executors, or administrators, but to his children; and if either dies without issue before the said period, then the share he would have been entitled to, if living, is to go to the surviving children of the testator. The rule of law in case of such a bequest is, that the interest accruing between the death of the testator and-the time of payment, if. not otherwise disposed of, sinks into the residue for the benefit of the residuary legatee. (2 Roper on Legacies, 224. Trevanion v. Vivian, 2 Ves. sen. 430.)
    The complainants’ couhsel endeavor to show that the testator has, by implication, given to the children the interest and income. They urge that the testator directs his executors to invest his estate for the use and benefit of his children. If, indeed, the testator stopped here, the children would be at once entitled not only to the income, but to the principal of the estate. But he proceeds to explain the manner and degree in which it is to be for their use and benefit. So far as relates to the younger children, they are to be educated and liberally maintained out of the income. His son and daughters are to receive the legacies given them in the will. Finally, if they survive his wife, and are living when the youngest comes of age, they are to have the income of the whole estate; and if not, the principal is to go to their children. Such a trust may, without impropriety, be said to be for their use and benefit. The testator’s intention is to be gathered from the whole will taken together. If he has given no directions for accumulation, the law directs that the income shall accumulate and form part of the fund to be divided. The legacies given by the testator to his son and daughters furnishes no ground to infer that he intended they should have the income. Had he left nothing to his children, the inference would have been infinitely stronger; for then it might fairly have been supposed that he did not intend to leave them destitute of support. The gift of a handsome fortune to each of his children is but a feeble argument to prove that he intended they should each have $10,000 a year besides.
    It is said the testator must be presumed to have made himself acquainted with the revised statutes, and therefore did not intend any accumulation. Those statutes expressly allow accumulations within certain limits, and make void an accumulation, only so far as it is directed beyond those limits. It is said that no directions are given to invest the income. The direction to invest his estate is a direction to invest the proceeds of it. The interest accruing from the bonds and mortgages is as much part of his estate as the bonds and mortgages themselves. It is inferred that the testator intended that the rents and profits should be received by his children, because he appointed guardians for the infants, and nominated to that office two of his friends in preference to his wife and adult daughters. But when it is to be considered that the, executors, and not the guardians, are to pay the expenses of the infants, and to pay them, not out of . the monies of the infants, but out of the income of the trust ' estate, the inference is very strong that those guardians were-not to be in the receipt of $30,000 a yéar. It is said that the testator would not have used the expression, “ all that remains of my estate,” if he had intended an accumulation. When it is considered, that at the period the testator is speaking of, the trustees will have paid legacies to the amount of near $400,000, the expression “ all that remains” is not very unnatural. Had the testator intended that the income should be divided among the children, he would have given some direction-for that purpose, and would have ordered that his son’s share of it should be diminished after he had received his legacies. He would also have directed how the income of his younger children should be invested; for as they are to be educated and maintained by the executors, their whole share of the income must accumulate during their minority. The will directs that after the partition of the estate, the shares of the respective children are not to be paid to them, but shall be separately invested by the trustees in their own names, and that the income of the several portions shall be paid to. the children during their respective lives. The principal is to be paid to their issue. It is therefore apparent, that until the youngest child arrives at the age of twenty-five years, it is the intention of the testator that his estate shall remain in one i mass, and that nothing shall be paid out of it, except his debts and specific legacies, and the maintenance of his younger-children. That after that period, the income shall be paid to his children, on their own receipts; and that the principal shall be secured for his grand children. He has in one case given special directions for the payment of the income, and therefore it was not through accident or forgetfulness-that he omitted to do so in the other.
    Upon the whole, it is plain that the testator intended that' his estate should accumulate till the time arrived when he directed the income to be paid over. And if he has given no directions concerning it, it must, if governed by the law as it stood previous to the revised statutes, for that very reason, accumulate for the benefit of those who may be eventually entitled to the principal. As to the real estate to be purchas1 x ed by the executors, the testator intended it as a mere temporary investment. It is to be purchased with the proceeds of the personal estate, and is to he again converted into personal estate before it is divided. The heirs have no claim to it. In this court,'and for this purpose, it must be considered as personalty. The real estate, of which the testator died seised, is situated differently. He has not devised it. It therefore descends to his heirs, subject to the powers given to the executors. They are expressly authorized to sell, and impliedly authorized to receive the rents and profits. We imply the latter power, because they are directed from the income of his estate, either real or personal, to pay and appropriate such sums as may be necessary for the respective support and education of his minor children. If the’ executors are thus to dispose of the rents and profits, they must be authorized to receive them. We imply this power, also, because the testator did not intend to die intestate as to the real estate. He had it clearly in bis mind. He directed it to be sold by his executors, and gave the above direction concerning it until the period of sale should arrive. Yet it may perhaps be questionable whether his will upon the subject has been effectually expressed. And the executors pray the instructions of the court, and will cheerfully perform the directions that maybe given them.
    It remains to consider the provisions contained in the revised statutes on the subject of accumulations. (1 R. S. 726, § 27, 38.) It is directed that the accumulation of rents and profits of real estate must be made for the benefit of one or more minors, and must terminate at the expiration of their minority ; and if a direction for an accumulation shall be for a longer time, it shall be void for the excess only. And (1 R. S. 773, § 3, 4,) like provision is made in relation to accumulations of personal estate. It would be uncan did to deny that these regulations affect the dispositions of Mr. Salles’ will. The accumulation probably must stop when the infants come of age. And as to two of the shares, the income must perhaps be paid over immediately. Whether it is to be paid to the husbands of the two eldest daughters, or secured to the separate use of the daughters themselves, or in what manner it is to be disposed of by the executors, are points on which the executors respectfully crave the directions of the court.
   The Chancellor.

The principal, if not the only question in this case, is as to the disposition of the rents and profits of the real estate of the testator, and the interest or income of the general residue of the personalty, which may accrue before the time appointed for the distribution or apportionment of the residuary estate among the children. So far as the income of the real estate is concerned, the case admits of very little doubt. For it is a general rule of law, that so much of the real estate of a testator as is not legally and sufficiently devised to some other person, either in express terms or by necessary implication, descends to the heirs at law. The will in the present case does not devise the real estate to the executors in terms; although it authorizes them to sell the estate, at a future time, for the purpose of distributing the proceeds of such sale among the testator’s children. This of itself is a mere devise of a power in trust; and the legal estate descends to the heirs at law until it is divested by the execution of the power. There is, however, a devise of the rents and profits to the executors, by implication, during the minority of the children, or while they remain unmarried. By the sixth clause of the will, the testator orders and directs his executors, from the income of his estate either real or personal, to pay and appropriate such sums as may be necessary for the respectable support and education of his minor children, until they shall severally attain the age of twenty-one years, or shall marry; and that on the happening of either of those events, this provision shall cease. Under this provision of the will, the executors are authorized, in their discretion, to support the minor children out of the rents and profits of the real estate, if they should think proper so to do. And this being a valid trust, the executors, by implication, take an interest in the land, to enable them to receive and apply the rents and profits for the purposes of the trust. (Courthope v. Heyman, Carter’s Rep. 25. Stile v. Tomson, 2 Dyer's Rep. 210.) But although the executors take the legal estate in the land, for a term of years which will end when the youngest child arrives at the age of twenty-one, or marries, there is a resulting trust in favor of the heirs at law of the testator, for the surplus rents and profits, which may accrue during the term, beyond what shall be actually applied for the support and education of the minors. One sixth part of such surplus, therefore, belongs to each of the children as a vested interest, and must be paid to them or their personal representatives, by the executors, at or before the termination of that particular trust. After the youngest child is of age, or married, the children will be entitled to the rents and profits of the real estate, as tenants in common. And from that time they will also have the legal interest in such real estate, during the life of the mother, and until the youngest child arrives at the age of twenty-five years ; at which time the power in trust is to be executed by a sale of the estate.

The questions as to the income of the personal estate, over and above what may be necessary for the support and education of the infant children, would have been equally easy of solution were it not for the provisions of the revised statutes which prohibit the accumulation of the rents and profits of real estate, or the interest or income of personal property, except for the benefit of infants, and during their minorities only. (1 R. S. 726, 773.) Two questions arise, under the statute, in this case. The first is, whether the interest or income of the residuary estate was intended by the testator to accumulate until the time appointed for the division or apportionment of the fund among the children, or their representatives, after the death of the widow; so as to bring it within the prohibition of the statute. And the second, which is still more difficult and equally important in the present case, is, who are entitled to this interest and income, if there is a trust of accumulation which is rendered void by the statute. The first of these questions has been fully argued, by the counsel for the complainants and for the executors, and their written briefs are before me. I regret, however, that I am compelled to decide the important principle involved in the second question, with so little aid from the learned counsel who have so ably argued the first. Especially as the executors have permitted this cause to be brought to a hearing, without having the widow and next of kin of the testator made parties ;• so that the decree which may be made between the present parties, if I should happen to err on the question of law, would npt be binding upon those who are not represented in the cause.

By the law as it existed previous to the late revision, thé testator could suspend the absolute vesting of his real or personal estate, until the -termina ton of the minority of a child who might be born, or begotten, during the existence of any number of lives in being at the death of the testator. And it had also been decided by the highest judicial tribunal in England, that the interest or income of the estate might be accumulated for the same period; so as to go to the same person to whom the estate was ultimately given. (Thelluson v. Woodford, 11 Ves. Rep. 112.) Where the legatee took a vested interest in the principal of a residuary bequest, payable'at 'a future time ; although it was bequeathed over, or was subject to be divested by his death before the time appointed for the' payment thereof, the interest or income of the legacy followed the principal sum, and belonged to the legatee, .unless it was otherwise disposed of by the will. (Nichols v. Osborn, 2 P. Wms. 420.) But where a particular direction was given in the will, as to the application of the income dining the time in which the payment of the legacy was suspended, the residue of the income fell into the general residue. (Lownd. on Leg. 434.) Here, the testator has appropriated a part of_ the income for the support and education of such of the children as were infants. From this, it is evident he did not intend they should take the whole income, as that provision would have been wholly unnecessary in that case; the income of their shares of th'é general residue being much more than" could have been supposed necessary for their support and maintenance. Another substantial objection to the construction contended for by the complainants’ counsel, is that the children were not in any event to take the principal of this residuary fund. Even after the death of the widow, they are only to have a life estate in the income of the fund; the principal is given over to their issue. As the testator has given them merely a contingent interest in the income of the fund after the death of the widow, it cannot reasonably be presumed that he intended to give them an absolute interest in the Whole income previous to that time; except so far as he has directed a portion of that income to be applied for their support during their infancy. I have no doubt, therefore, that the intention of the testator was, that the income previous to that time should accumulate for the benefit of the issue of his children, to whom this residuary fund is ultimately given. This is such an accumulation of the income as the statute has prohibited, and declared void. Does this income, then, go to the children of the testator, contrary to his obvious intention 1 or is it a surplus which is not legally bequeathed by the will, and which is to be disposed of by the statute of distributions 1 . That statute directs that the surplus of the testator’s estate which remains after paying debts and legacies, if the same is not bequeathed, shall be distributed to his widow and children—one third to the former and two thirds to the latter. (2 R. S. 96, § 75.) From the best lights I have been able to obtain, I have arrived at the conclusion that the interest and income of the residuary estate, previous to the- death of the widow, except so much as may be applied by the executors for the maintenance and education of the minor children, is a residue, or surplus of the estate, which was not legally bequeathed to any person by the testator. It must therefore be distributed by the executors, to the widow and next of kin, as in cases of intestacy. Such also appears to have been the opinion of Lord Eldon, upon the construction of the English statute, prohibiting the accumulation of the income of estates except for a limited period. (See 9 Ves. Rep. 133.) It is very evident that the testator did not intend his widow should enjoy the income of one third of his personal estate after bis death. Neither did he intend the children should have it during her life. He probably was not aware of the existence of the statute prohibiting trusts of accumulation; but, by the will, it appears he intended to dispose of this income in a manner which the laws of the state do not allow.

It is said to be inherent in the nature of man to desire that his property should be perfectly free, and subject to his absolute control, during his life, and to tie it up from the control of his children and heirs forever afterwards. But there are no surer means of paralyzing the exertions and destroying the future usefulness of a legatee, than to hold out to him the prospect of great wealth, for himself or his children, at some distant period, without the exercise of ordinary industry and enterprise in obtaining it. This law against accumulations is, therefore, a salutary provision in the revised statutes; as no man should be encouraged, or even permitted, to withhold the mere income of his estate from those who should be the first objects of his bounty, for the sole purpose of hoarding up wealth, by compound interest after his death, to provide for a second or a third generation, of whom he can know nothing. Neither is it necessary that he should be permitted to accumulate a fortune, after his death, even for his immediate descendants, to be given to them at the close of their lives, when they are no longer in a situation to enjoy it. It is the duty of the court, therefore, to carry this law into effect, according to its spirit and intent; and in such a'manner, if possible, as to correct those evils against which .the revisors and the legislature intended to guard. And if the decedent does not make such a testamentary disposition of his whole property as is allowed by the laws of the state, so much thereof as is not legally and effectually disposed of, mtist be distributed among those upon whom the law would have cast it in case of an intestacy.

There must be a decree declaring, the construction of the will in conformity, with this decision. And the costs of both parties should be paid out of that part of the income of the personal estate which is not disposed of by the will.

       See Green v. Elkins, 2 Atk. 473 ; Butler v. Freeman, 3 Id. 58 ; Trevanion v. Vivian, 2 Ves. sen. 430.


text:
    Hart and others vs. D. & A. Small.
    Where the complainant, after he had referred the further answer of the defendant for insufficiency on the old exceptions, and after he had taken out and served a warrant to proceed on such reference, put in new exceptions to the further answer, for impertinence, and obtained another order of reference of those exceptions; Held, that the exceptions for impertinence were irregular; and they were ordered to be taken off the files of the court.
    Where the complainant wishes to except to the farther answer, as well as to refer it on the old exceptions for insufficiency, he must file his new exceptions within the ten days allowed by the 52d rule for referring a second or ■ third answer upon the old exceptions; and after the defendant has had the usual time to submit to the new exceptions, the complainant may have an order to refer the answer upon the old exceptions, and upon such of the new exceptions as are not submitted to by the defendant.
    The complainant is not precluded from excepting to the further answer of a defendant, for impertinence, although it purports to be an answer to the old exceptions for insufficiency only; but in that case, his exceptions for' impertinence must be filed within the ten days allowed for referring the further answer upon the old exceptions, or it will be too late.
    If the bill has been amended, so that the further answer is an answer to the amendments as well as the exceptions, the complainant may file new exceptions at any time within twenty days; but the answer as to the old exceptions will be deemed sufficient, unless new exceptions are filed, or it is referred on the old exceptions within the first ten days.
    This was an application on the part of Daniel Small, one of the defendants in this cause, to set aside the proceedings upon the complainants’ exceptions to his further answer, for irregularity. The complainants, within ten days after the further answer was put in, referred the same for insufficiency on some of the old exceptions; and they took out a warrant on such reference, and served it on the defendants’ solicitor. They subsequently put in new exceptions to the further answer for impertinence; and afterwards obtained another order of reference upon those exceptions.
    January 28.

      J. JV*. Cushman, for the complainants.

      Israel Williams, for the defendant.
   The Chancellor.

It was irregular to except to the d<s fendants’ second or further answer for impertinence, after it had been referred for insufficiency upon the old exceptions. In the case of The Bennington Iron Co. v. Campbell, (2 Paige's Rep. 162,) the course to be pursued, where the complainant wishes to except to the further answer as well as to refer it on the old exceptions, is pointed out. The complainant must first file his new exceptions within the ten days, allowed by the 52d rule for referring a second or a third answer upon the old exceptions. This will operate as an enlargement of the time, allowed by that rule, until after the defendant has had the usual time to submit to the new exceptions. And the camplainant may then, or within the ten days thereafter, take his order to refer the answer, to the master, upon the old exceptions which are not answered, and upon such of the new exceptions as are not submitted to. Although the case referred to was .a case of new exceptions for insufficiency, the same reasons are also applicable to exceptions to a further answer for impertinence, where the defendant has undertaken to answer amendments and exceptions together. The 53d rule of this court has placed exceptions for impertinence and exceptions for insufficiency on the same footing, substantially, as to the mode of proceeding thereon in such cases. Where the bill has not been amended, so that the further answer is only an answer to the old exceptions for insufficiency, the complainant is not precluded from excepting for impertinence. But, in that- case, his exceptions must be filed within the ten days allowed for referring the answer on the old exceptions, or it will be too late ; as the answer will then be deemed to be sufficient.

If the further answer is intended as an answer to amendments,- as well as to the former exceptions, a neglect to file new exceptions for insufficiency, or impertinence, within the first ten days, does not deprive the complainant of the benefit of such new exceptions; provided such new exceptions are filed and served within the twenty days allowed by the 50th rule ; the further answer, so far as it purports to be an answer to the amendments, not being complete until the expiration of that time. But the order of reference in such a case must be a reference of the new exceptions only; or such of them as have not been submitted to by the defendant. In other words, the1 further answer is complete, as to the matters of the original bill and the old exceptions, unless some proceedings are had thereon within the first ten days after it is put in. But as to the new matters introduced into the bill by amendment, it is not complete until after the expiration of twenty days. (See Van Wagenan v. Murray, 1 Edward’s Ch. Rep. 319.)

The order, in the present case, to refer the second answer upon the old exceptions, which order was entered within the first ten days and before any new exceptions were filed, was perfectly regular. But by the entry of that order, the complainants precluded themselves from taking new exceptions to any part of the answer, either for insufficiency or impertinence. The new exceptions must therefore be taken off the files of the court; and the order of reference entered thereon must be set aside. As the practice in this respect has not been well understood, and the construction of some of the new rules has not before been explicitly declared, I shall not charge the complainants with the costs of this application in this stage of the suit. The defendants’ costs, however, will be costs in the cause, if he succeeds in obtaining a decree against the complainants for costs when the cause is finally disposed of, upon the merits or otherwise.


text:
    Hannan and others vs. Osborn and others.
    Where the sister of the testator, at the time of the making ofhis will and at his death had hut one child, and he devised the residué of his real and personal estate to such sister, to hold the same to her and her children forever, with a devise over, in case she should die, and all her children should die, leaving no children; Held,'that under the revised statutes, the sister took an estate for life in the property, and that the child took a vested remainder in fee, subject to open and let in after bom children ; and that the limitation over after the death of all the children of the sister without issue was void, being too remote as to the after bom children.
    Under the statute of descents which was in force previous to the revised ■statutes, there was no representation among the collateral heirs of a'decedent, beyond brothers’ and sisters’ children.
    Where one tenant in common receives more than his share of the rents and profits of the estate held in common, his co-tenant has an equitable lien upon his undivided interest in the premises, which may be enforced against the same, while .the parties continue to hold the premises in common.
    Upon the death of a tenant in common who has received more than his share of the rents and profits of the estate, the amount due to his co-tenant, which is a personal charge, is payable primarily out of the personal estate of the decedent.
    A tenant in common, who has been in possession, and received the whole rents and profits of the estate, in accounting for such rents and profits to his co-tenants, is entitled to an allowance for such sums as he may have paid for taxes or assessments on the premises, or for keeping the same in ordinary repair.
    January 28.
    The bill in this cause was filedin 1821, by Alexander Han-nan and Margaret his wife, against Ann Osborn and Catharine Raborg, for the partition and sale of a lot of land, in the city of New-York, and for an account of the rents and profits thereof; and the bill prayed that certain bonds and mortgages which had been assigned to Alexander Hannan, and which were a lien upon the premises, might be paid out of the proceeds of the sale. The bill was afterwards amended by making Richard Woodhull a party defendant. The complainants alleged, in their bill, that the premises in question belonged to Margaret Lent at the time of her death, in 1812; and that she died intestate, leaving a brother and sister, James W. Lent, and Catharine Raborg, and several children of her deceásed brother and sister, John Lent and Cornelia Young, Ico whom the premises descended, as her heirs at law, charged with the liens of the several bonds and mortgages, which were afterwards assigned to Alexander Hannan. James W. Lent afterwards released and quit claimed all his interest in the premises to the other heirs of Margaret Lent. Margaret, the wife of A. Hannan, one of the daughters of Cornelia Young, claimed two twelfths of the premises as one of the heirs at law of Margaret Lent; and her husband claimed five twelfths of the premises by purchase from some of the other heirs. The complainants also alleged in their bill, that Ann Osborn was entitled to one twelfth of the premises, as one of the four children of John Lent, deceased, and that Catharine Raborg was the owner of the remaining four twelfths. Mrs. Raborg admitted by her answer that she held the premises as a tenant in common with the complainants and others; but she denied that Margaret Lent was the owner of the whole lot at the time of her death. On the contrary, she alleged that the lot in question belonged to her mother Ann Lent, Who died in possession thereof in 1784; and that upon her death it descended to her six children, to wit, Margaret Lent, the four brothers and sisters of Margaret named in the complainants bill, and another sister, Ann Lawrence, the great grand mother of the infant defendant, Richard WoodhulL Ann Osborn suffered the bill to be taken as confessed against her; and R. WoodhuII put in a general answer, by his guardian. Mrs. Raborg died pending the suit; and by her will devised her interest in the premises to her two daughters, Margaret Raborg, and Mary, the wife of David Lent, against whom the suit was subsequently revived. A. Hannan also died pending the suit, in October, 1830; and by his will, after giving certain legacies, and an annuity, to his wife, in lieu of ■dower, devised the remainder of his estate, both real and personal, to his sister Mary Ann, the wife of Thomas Philips; to have and to hold the same to her and her children forever. But in case she should die, and all her children should die, leaving no children, then he gave the property over to his brother and sisters, John Hannan, Julianna Stone, and Amelia Manchester. The suit was thereupon revived and continueá against the former defendants, by a bill filed by Margaret Hannan, the surviving complainant, and by Thomas Philips and wife, as the devisees of Alexander Hannan. Sarah EL Philips, an infant daughter of Mary Ann Philips, who was in esse at the death of the testator, and the brother and sisters of A. Hannan, to whom the contingent interest was given by the will, were also made parties defendants.
    The cause was brought to a hearing upon the pleadings and proofs.

      G. B. Hall, for the complainants,
    cited Mumford v. Brown, (6 Cowen, 475;) 1 R. L. of 1813, p. 53, § 3; 1 R. S. 752, § 8; Pelt v. Pett, (1 Comyn’s Rep. 87 ;) S. C. 1 Salk. 250 ; 1 P. Wms. 25 ; Maw v. Harding, (2 Ver. Rep. 233.)

      M. Hoffman, for the infant defendant Sarah H, Philips,
    cited Jeffery v. Honeywood, (4 Mad. R. 398;) Oates v. Hatterly, (2 Strange, 1172 ;) Coke Litt. 9, a.; Cooke v. Cooke, (2 Vernon, 545, 455;) Frederick v. Frederick, (Cro. Eliz. 384;) Wilde’s case, (6 Coke’s Rep. 18;) Murry v. Wise, (2 Vernon, 564;) Hockley v. Mawley, (1 Ves. jun. 145;) Newman v. Nightingale, (1 Cox’s Ch. Cas. 141;) Warner v. Hone, (Prec. in Ch. 491 ;) Oates v. Jackson, (2 Vernon, 106.)

      T. Phcenix, for the devisees of Mrs. Raborg, and the infant defendant Richard Woodhull.

      E. C. Benedict, for Julianna Stone and the other persons claiming a contingent interest under the will of A. Hannan.

      W. Talmadge, for the defendant Ann Osborn.
   The Chancellor.

The first question to be examined in this cause is, whether Margaret Lent, at the time of her death, 'Was the owner of the whole lot, or was only entitled to the sixth part thereof as one of the heirs at law of her mother, who died in 1784. If Ann Brewster, the grand niece of Margaret Lent, was to be entitled to a share of her property under the statute of descents, then it can make no difference With the other parties to this suit, whether the whole lot originally belonged to Margaret Lent, or to her mother, as their several interests in the property would be precisely the same; provided the one sixth of the property is sufficient to pay the bonds and mortgages given by Margaret Lent. But if the grand niece could not inherit under the statute of descents which was in force in 1812, then Mrs. Raborg would be entitled to a greater share of the estate as one of the four heirs of her sister for the whole lot, than she would be if she takes but one sixth as the heir of her mother, and one fourth of another sixth as the heir of her sister. So far as the rights of the infant Richard Woodhull are concerned, however, it is very material to ascertain whether bis mother was entitled to one sixth of the estate as a lineal descendant from one of the heirs at law of her great grand mother. I have therefore examined the testimony with a view to ascertain that fact. It appears from the testimony that the lot in question, during the revolutionary war, was occupied and claimed by Richard Fletcher, the maternal uncle of Margaret Lent, who left the city of N, York, with his family, upon its evacuation by the British, in 1783. That the lot was then under a mortgage to J. Rosevelt, which mortgage was probably assigned to John Lent, at a subsequent time. That in the spring of 1783, when Fletcher was preparing to leave the city as a refugee, he put Margaret Lent into possession of the lot That she went into possession claiming to be the owner; and that she continued in the possession, by herself and her tenants, claiming to be such owner, until her death, in 1812. It also appears that her brother John, after he obtained an assignment of the Rosevelt mortgage, which was probably purchased by him for her benefit, gave her a conveyance of all Ms interest in the premises. Although the mother of Margaret Lent, and the other members of the family, -went to reside with her in the fall of 1783, there is no evidence that any of them ever pretended to claim any interest in the premises, except the interest which John derived under the mortgage, until after the death of Margaret, in 1812. From the testimony, it appears to be somewhat doubtful whether any of the Lent family ever had an actual conveyance of the legal title, from the former owner of the lot. But as Margaret went into possession in 1783, claiming title, and continued that possession for about thirty years, which was adverse to the whole world, she had, at the time of her death, acquired a valid title to the lot, which cannot now be disturbed. The decree in this case must, therefore, declare that Margaret Lent, at the time of her death, in 1812, was seised of the whole lot, in fee simple; and (hat it descended to her heirs at law, subject to the payment of her debts, especially the bond debt, and the several mortgages executed by her in her lifetime. The mortgages are specific liens, and the bond a general lien upon the premises.

Under the statute of descents of 1786, (1 R. L. of 1813, p. 52,) the estate of Margaret Lent descended to her surviving brother and sister, and to the several children of her deceased brother and sister; the children taking, by representation, the shares which would have belonged to their deceased parents, if living. But under that statute no representation was allowed among collaterals beyond brothers’ and sisters’ children. (See Rev. note to § 8 of ch. 2, pt. 2.) This principle of representation among the descendants of brothers and sisters, however, is changed by the revised statutes, so as to extend to all lineal descendants of a brother or sister, however remote. (1 R. S. 752, § 8, 9.) The decree must further declare that Ann Brewster, the grand piece of Margaret Lent, took nothing by descent from her, and that the infant defendant, Richard Woodhull, has, therefore, no interest in the premises.

Mrs. Hannan, under the will of her late husband, had a right to elect either to take her dower in. his real estate, or to take the annuity and legacy given to her in lieu of dower. And if she has not already made such election by accepting the provision made for her by the will, she must now elect whether she will take the one or the other. If she elects to take her dower, the decree must declare that she is entitled to an estate, in fee simple, in two twelfths of the premises, and to an estate for life, as tenant in dower, in one third of the five twelfths of the premises which belonged to her husband at the time of his death.

The question then arises as to who is entitled to the residue of those five twelfths under the will of Alexander Han-nan. The clause of the will which raises this question is as follows: “ I give, devise and bequeath unto my sister Mary Ann Philips, wife of Thomas Philips, of the city of New-York, all the remainder of my estate, both real and personal: To have and to hold the same to her and her children, forever. But in case my said sister Mary Ann shall die, and all her children shall die, leaving no children, then my will is, that this part of my estate shall then be divided among my brother and sisters; to wit, brother John, and sisters Julianna Stone and Amelia Manchester.” The testator died since the revised statutes went into operation; and at the date of the will, and at the time of his death, his sister Mrs. Philips had one child only, Sarah H. Philips, one of the infant defendants in this cause.

The rule, that the intention of the testator, so far as it can legally be carried into effect, should govern in all devises of real estate, has always been acted upon by courts of justice; except in two or three special cases, where technical rules of law have been permitted to defeat such intent. The revised statutes having abolished the rule in Shelly’s case, which formed one of those exceptions, and having also restored the expressions, “die without issue,” and “die without leaving issue,” to their natural and obvious meaning, courts of justice are now left free to give such a construction to the language of a testator in his will, as to carry into effect his intention, so far as the same can be collected from the whole instrument; provided such intention is not illegal. Indeed it is now expressly provided by statute that the intent of the party shall govern, as well in the construction of deeds of real estate, as of wills.

By the common law, a devise to a man and his children as an immediate gift to both, was held to be a devise to the parent and children jointly, or to give an estate tail to the father, according to circumstances. If there were children in existence at the time, it was held that they took jointly with the parent; but if there were none, he took an estate tail by implication. If, however, it appeared from the will that the intention of the testator was, that the children should take the estate only by way of remainder after the death of the parent, then the children who were in existence at the death of the testator, as well as after born children, took the estate as purchasers, after the termination of the life estate of the parent. (See Wilde’s case, 6 Coke’s Rep. 17, b.) In the present case Mary Ann Philips does not take a joint estate with her daughter; for that certainly was not the intention of the testator, For, the devise is not to the mother and her children, immediately. It is a devise to the mother; to have and to hold the same to her and to her children. Evidently showing the intention of the testator that the children were not to take immediately, but only by way of remainder after the death of the mother. The term children, in the plural, when there was but one child in existence at the time of making the will, also shows that it was not the intention of the testator that the children should take immediately. The mother, therefore, takes an estate for life under this will; and her infant daughter takes a vested remainder in fee, which is subject to open, to let in after born children. As the limitation over to the brother and sisters of the testator was not to take effect until after the death of Mrs. Philips, and after the death of her children, who might be born many years after the death of the testator, that limitation over is void, as being too remote. (See 1 R. S. 723, § 14, 15, 16.) The same principles are applicable to the personal estate bequeathed to Mrs. Philips and to her children under this will. (1 R. S. 773, § 1, 2.) The decree must therefore declare the rights of these parties accordingly. The solicitor and guardians ad litem of the several parties who are adjudged to have no interest in the premises, must be paid their necessary costs, up to this time, out of the proceeds of the property, when sold. As the rights of these parties are now definitively settled, no further costs are to be allowed to them ; and it will not be necessary to serve any further notices or papers upon them hereafter, except the notice to furnish their taxed bill of costs to the register, in conformity with the 183d rule of the court.

The proper parties are not before the court, to enable me to make a decree for an account and satisfaction, of the rents and profits of the premises which accrued previous to the death of Alexander Hannan. It is charged in the bill that Catharine Raborg has occupied the premises since the first of May, 1820. But to do complete justice between all the parties interested in the premises, an account should be taken of the rents and profits from the death of Margaret Lent, in 1812. Such rents and profits, although they may form an equitable lien on the premises, as between tenants in common while they continue to hold the premises in common, yet they are a personal charge upon the individual receiving the same; and upon his death are payable primarily out of his personal estate. The share of each tenant in common is also a debt due to himself from the co-tenant who received the same; and does not pass to his grantee upon a sale of his interest in the premises. Neither does it go to his devisee, or heir at law, upon his death, but to his personal representative. So much of the bill as seeks an account of the rents and profits of the premises previous to the death of A. Hannan must be dismissed ; but without prejudice to the rights of the several parties who are entitled to such rents and profits, or their personal representatives, in any future litigation respecting the same.

The master is to take an account of the rents and profits of the premises received by any of the present parties to this suit, since the death of Alexander Hannan. And in taking such account, he is to allow to such parties as an offset against the rents and profits received, any sums which may have been paid by them for taxes or assessments upon the premises, or for keeping the same in ordinary repair. The case of Mumford v. Brown, (6 Cowen’s Rep. 475,) was decided upon a different principle. There one tenant in common was attempting to charge his co-tenant, in an action of assumpsit, upon an implied promise to pay for repairs which he had never authorized; and where, from the circumstances of the case, no such implication could arise. But when a mortgagee, or a tenant, in common, in possession, is called upon to account for the rents and profits of the premises, he is chargeable with the net amount of such rents and profits only, after allowing-for necessary reparations upon the premises, and the taxes and assessments charged thereon, which have been paid by him out of such rents. (Moore v. Cable, 1 John. Ch. Rep. 385.) So in an action of trespass for mesne profits, the defendant may recoupe the damages to the value of the repairs which he has made on the premises. (Murray v. Gouverneur, 3 John. Cas. 441.)

The investigation respecting the title to the lot in question must necessarily have been gone into, for the purpose of ascertaining the rights of Richard Woodhull, the infant. There is, therefore, no sufficient reason for charging the expense of that investigation upon the share which now belongs to the devisees or Catharine Raborg. But as the complainants had set out the rights and interests of all the parties correctly in the bill, it would be inequitable to allow the representatives of Mrs. Raborg the extra costs which she made herself by her answer, as .a charge against the fund to be raised on the sale of the lot. In the taxation of the costs, therefore, her solicitor must only be allowed such costs as he would have been entitled to, if she had suffered the bill to be taken as confessed.

It is evident that the property cannot be divided without great prejudice to the rights of the parties. It must, therefore be referred to a master residing in New-York, to inquire as to specific liens upon the undivided shares of the several parties, and to give the usual notice to persons having general liens, to come in and prove them before the master. The master must also compute the amount due to the personal representative of A. Hannan, deceased, for the principal and interest on the separate bond, and the several bonds and mortgages of Margaret Lent; and he must also ascertain and report whether either of the parties now before the court is such personal representative. He must also take an account between the parties as to the rents and profits of the premises since the death of A. Hannan, upon the principles above stated. And all further questions and directions are to be reserved until the coming in and confirmation of the master’s report; when the complainants are to be at liberty to bring the cause on, upon any regular motion day, or in term, for the usual decree for a sale of the premises and a distribution of the proceeds.